Açık Radio, RTSC and Constution Court’s landmark decision
This is a process that started with a five-program broadcast suspension and fine imposed by RTSC for some sentences used on the Açık Gazete program on April 24. Technically, the license was decertfied not because of this, but because –according to RTSC– the fine was not paid, but it is worth taking a closer look at the picture and remembering a precedent-setting decision of the Constitutional Court on this very issue.
The Radio and Television Supreme Council (RTSC) decertified Açık Radio's terrestrial broadcasting license and the radio station was silenced as of October 16. So how did it come to this point?
This is a process that started with a five-program broadcast suspension and fine imposed by RTSC for some sentences used on the Açık Gazete program on April 24. Technically, the license was decertified not because of this, but because –according to RTSC– the council’s decision was not implemented, but it is worth taking a closer look at the picture and remembering a precedent-setting decision of the Constitutional Court on this very issue.
According to the statement in the decision of the Supreme Council, “... the guest who participated in the broadcast said '... it is the 109th anniversary, the anniversary of the deportations and massacres that took place in Armenian, that is, Ottoman lands, massacres that are called genocide. You know that the Armenian genocide commemoration was banned this year as well', and that the programmers' haven’t made a correction about this expressions is incompatible with the understanding of public responsibility and responsible broadcasting, as well as inciting the society to hatred and hostility and creating feelings of hatred in the society.”
The radio paid the first installment of the fine. According to the statement made by Açık Radio, “In the notification sent electronically, although the text of the Supreme Council's decision was opened, due to a software error in the electronic notification system, the text indicating the days the radio would be closed could not be opened; therefore, the decision could not be implemented because we were not informed about it. On the other hand, since the fine was included in the decision, an application was made to RTSC for payment and the first installment was paid. A lawsuit was filed against the decision within the legal period and also demanded for stay of execution.”
Despite this, RTSC decertified the radio station's terrestrial broadcasting license. In the meantime, however, the decision to decertify was not notified due to the Ankara 21st Administrative Court's 'stay of execution' decision on Açık Radio's appeal against the broadcast suspension. The radio continued broadcasting, albeit on pins and needles.
Last week, we learned that the same court revoked the stay of execution, and although Açık Radio appealed this decision, RTSC notified the decision to decertify. In this case, even though the appeal process continues, the terrestrial broadcast was cut off. So 95.0 is now –or for now– silent.
So why did RTSC decide to stop the program? Because “Armenian Genocide” was said on the air and the programmer did not correct it. At the very beginning of the process, I had reminded in these columns that the Diyarbakır Bar Association and the HRA (Human Rights Association), who were sued one after another for saying the Armenian Genocide, were acquitted of these criminal suits. Why did RTSC decide to suspend the program on the grounds of “inciting the public to hatred and hostility” when there were such court decisions? We don't know. We asked these questions then too and we did not get an answer.
In this very process, the Constitutional Court (AYM) made an important decision. The conference planned by the Hrant Dink Foundation to be held in Kayseri on October 18-19, 2019 was banned by the Governor's Office, the Foundation took the matter to court, and when it failed to get a result, it went to the Constitutional Court. A few weeks ago, the Constitutional Court ruled that the ban “violated the right to organize meetings and demonstrations”.
The Constitutional Court, which also made an important precedent-setting ruling, argued that it was wrong to reach the conclusion of a ban based on the thesis that the expressions 'genocide' and 'massacre' could be used in the speeches at the conference and made the following assessment:
“The 'Armenian Deportation', which took place more than a hundred years ago, has been an important political and historical issue that has been and is still being discussed in our country and in the international community, academic and political circles.”
In the concrete case, it is clear that the expressions on which the ban is based are not accepted by the state authorities and the Turkish society in general and are disturbing. However, it must also be observed that freedom of expression applies not only to information and ideas that are accepted by society or considered harmless or irrelevant, but also to information and ideas that are hurtful, shocking or worrying.”
“Consistent with this assessment, the terms to be used and the interpretations to be expressed in the interest of establishing historical facts must be allowed to be expressed –as long as they are not of a nature to incite or justify violence by inculcating hatred against a community or individuals.”
Last September, Fethiye Çetin, Hrant Dink Foundation Legal Advisor, while commenting on the verdict to Agos said:
“The Constitutional Court ruled that the administrative action regarding the cancellation of the conference violated the right to organize meetings and demonstrations guaranteed under Article 34 of the Constitution in the context of freedom of expression, and made very comprehensive, very important statements that saying the Armenian Genocide or Massacres should be evaluated within the boundaries of freedom of expression. I think it is a very important precedent decision in this respect.”
The Constitutional Court says this, but on the other hand, RTÜK issues a program suspension; the court suspends the execution, but then revokes this decision. And on the grounds of a technically flawed process, the license of a 30-year-old radio station is canceled.
It is not only the voice of Açık Radio that is being cut off, it is the voice of all of us.
This is a process that started with a five-program broadcast suspension and fine imposed by RTSC for some sentences used on the Açık Gazete program on April 24. Technically, the license was decertified not because of this, but because –according to RTSC– the council’s decision was not implemented, but it is worth taking a closer look at the picture and remembering a precedent-setting decision of the Constitutional Court on this very issue.
According to the statement in the decision of the Supreme Council, “... the guest who participated in the broadcast said '... it is the 109th anniversary, the anniversary of the deportations and massacres that took place in Armenian, that is, Ottoman lands, massacres that are called genocide. You know that the Armenian genocide commemoration was banned this year as well', and that the programmers' haven’t made a correction about this expressions is incompatible with the understanding of public responsibility and responsible broadcasting, as well as inciting the society to hatred and hostility and creating feelings of hatred in the society.”
The radio paid the first installment of the fine. According to the statement made by Açık Radio, “In the notification sent electronically, although the text of the Supreme Council's decision was opened, due to a software error in the electronic notification system, the text indicating the days the radio would be closed could not be opened; therefore, the decision could not be implemented because we were not informed about it. On the other hand, since the fine was included in the decision, an application was made to RTSC for payment and the first installment was paid. A lawsuit was filed against the decision within the legal period and also demanded for stay of execution.”
Despite this, RTSC decertified the radio station's terrestrial broadcasting license. In the meantime, however, the decision to decertify was not notified due to the Ankara 21st Administrative Court's 'stay of execution' decision on Açık Radio's appeal against the broadcast suspension. The radio continued broadcasting, albeit on pins and needles.
Last week, we learned that the same court revoked the stay of execution, and although Açık Radio appealed this decision, RTSC notified the decision to decertify. In this case, even though the appeal process continues, the terrestrial broadcast was cut off. So 95.0 is now –or for now– silent.
So why did RTSC decide to stop the program? Because “Armenian Genocide” was said on the air and the programmer did not correct it. At the very beginning of the process, I had reminded in these columns that the Diyarbakır Bar Association and the HRA (Human Rights Association), who were sued one after another for saying the Armenian Genocide, were acquitted of these criminal suits. Why did RTSC decide to suspend the program on the grounds of “inciting the public to hatred and hostility” when there were such court decisions? We don't know. We asked these questions then too and we did not get an answer.
In this very process, the Constitutional Court (AYM) made an important decision. The conference planned by the Hrant Dink Foundation to be held in Kayseri on October 18-19, 2019 was banned by the Governor's Office, the Foundation took the matter to court, and when it failed to get a result, it went to the Constitutional Court. A few weeks ago, the Constitutional Court ruled that the ban “violated the right to organize meetings and demonstrations”.
The Constitutional Court, which also made an important precedent-setting ruling, argued that it was wrong to reach the conclusion of a ban based on the thesis that the expressions 'genocide' and 'massacre' could be used in the speeches at the conference and made the following assessment:
“The 'Armenian Deportation', which took place more than a hundred years ago, has been an important political and historical issue that has been and is still being discussed in our country and in the international community, academic and political circles.”
In the concrete case, it is clear that the expressions on which the ban is based are not accepted by the state authorities and the Turkish society in general and are disturbing. However, it must also be observed that freedom of expression applies not only to information and ideas that are accepted by society or considered harmless or irrelevant, but also to information and ideas that are hurtful, shocking or worrying.”
“Consistent with this assessment, the terms to be used and the interpretations to be expressed in the interest of establishing historical facts must be allowed to be expressed –as long as they are not of a nature to incite or justify violence by inculcating hatred against a community or individuals.”
Last September, Fethiye Çetin, Hrant Dink Foundation Legal Advisor, while commenting on the verdict to Agos said:
“The Constitutional Court ruled that the administrative action regarding the cancellation of the conference violated the right to organize meetings and demonstrations guaranteed under Article 34 of the Constitution in the context of freedom of expression, and made very comprehensive, very important statements that saying the Armenian Genocide or Massacres should be evaluated within the boundaries of freedom of expression. I think it is a very important precedent decision in this respect.”
The Constitutional Court says this, but on the other hand, RTÜK issues a program suspension; the court suspends the execution, but then revokes this decision. And on the grounds of a technically flawed process, the license of a 30-year-old radio station is canceled.
It is not only the voice of Açık Radio that is being cut off, it is the voice of all of us.
