Events
The applicants participated in various rallies in Ankara on different dates to protest their dismissal from public service or dismissal in general and the application of the state of emergency, and to support former teacher S.Ö. and former lecturer NG, who had begun a hunger strike due to their dismissal.
The Ankara Governor’s Office decided to ban meetings throughout the province as an extraordinary measure or to make them subject to permission. Th applicants were fined administratively on various dates between the end of 2016 and mid-2018, pursuant to Article 32 of Law No. 5326 on Misdemeanors, on the grounds that they had participated in the aforementioned meetings. The applicants’ appeals against the administrative fines imposed on them were definitively rejected by the court of first instance on the grounds that the administrative fines were in accordance with the procedure and the law.
Allegations
The applicants claimed that they were fined for participating in various meetings in violation of orders and that their right to organize meetings and demonstrations was therefore violated.
The Court’s Assessment
In the present case, during the state of emergency declared following the coup attempt on July 15, 2016, the right to hold meetings and demonstrations throughout Ankara was prohibited pursuant to Article 11(m) of Law No. 2935. except for the prohibition decision dated May 24, 2017, which was valid for 24 hours, and the decision dated January 21, 2018, which made such activities subject to permission. Although the aforementioned Law also provides for less restrictive measures such as postponing meetings, making them subject to permission, and determining the place and time of the meeting, the administration exercised its discretionary power during the state of emergency for a long period (approximately 11 months in total, including 8 months without interruption during the 2-year state of emergency) to ban all meetings and demonstrations.
It is a fact that our country faces many different terrorist threats even outside of a state of emergency. Similarly, our country is primarily affected by the activities of terrorist organizations in neighboring countries. Precisely for this reason, constant interference with fundamental rights without concrete evidence, on the grounds that there is a terrorist threat in our country, carries the risk of eliminating the essence of the right. Furthermore, while most of the aforementioned prohibition decisions refer to actions in support of S.Ö. and NG and the disturbance caused by these actions, while some refer to the damage caused to the environment by actions carried out intensively in areas frequently visited by citizens, such as parks or gardens, the abstract reference to the terrorist threat raises doubts as to whether the administration focused on a concrete terrorist threat when exercising its discretionary power.
Unlike the other prohibition decisions in question, the Ankara Governorate’s prohibition decision dated 30/8/2017 is not available on the Governorate’s website. In this case, unlike the other prohibition decisions in question, it cannot be said that the administrative fines imposed based on the Ankara Governorate’s prohibition decision dated 30/8/2017, which was not properly announced to the public, are in line with the requirements of a democratic society. Indeed, this situation, which eliminates certainty and predictability, is of a nature that could pave the way for arbitrary behavior by the administration.
In the Ankara Governorate’s restriction decision dated January 21, 2018, unlike the other prohibition decisions in question, no period was specified; the validity period of the decision was linked to a military operation carried out abroad, with the end date entirely at the discretion of the administration and lacking predictability for individuals. It is clear that such a determination, which lacks certainty and predictability, raises the issue of arbitrariness on the part of the administration. Therefore, it has been assessed that the administrative fines imposed based on the Ankara Governorate’s January 21, 2018 prohibition decision, whose validity period is linked to the end of the operation, are not compatible with the requirements of a democratic society for this reason.
Assessment in Light of Article 15 of the Constitution
With the prohibition decisions subject to the application, the Ankara Governorate has imposed a burden that has the same effect as an indefinite categorical prohibition on the rights of individuals to organize meetings and demonstrations. However, it has in no way demonstrated that this burden outweighs the threat to public order faced by individuals who have lost their jobs or loved ones and are trying to make their voices heard or find allies for their ideas within the scope of emergency measures. Moreover, the administration resorted to the most severe measure provided for in the relevant Law, but failed to demonstrate in any way that less severe measures would be insufficient to strike a fair balance between the conflicting values at stake in the case. Furthermore, no violent incidents were found to have occurred at the meetings in question.
The prohibition decision dated August 30, 2017, which was not made public, and the authorization decision dated January 21, 2018, whose validity period was determined to be the end of the military operation, were assessed as completely eliminating predictability and thus potentially leading to arbitrariness. It was concluded that these decisions, which could lead to arbitrary applications, could in no way be justified by the state of emergency in the specific case.
The Constitutional Court ruled that the right to organize meetings and demonstrations had been violated for the reasons stated.