Facts
At the time the events occurred, the applicant was the Chair of the Board of Directors of the Union of Chambers of Turkish Engineers and Architects (TMMOB). The applicant was fined under Article 32 of the Misdemeanors Law No. 5326 due to certain publications posted on the TMMOB website that contained opinions regarding a constitutional amendment. The applicant appealed the administrative fine; the magistrate’s court reviewing the appeal definitively rejected the applicant’s appeal.
Claims
The applicant claims that the administrative fine imposed on him for the views he published on a website constitutes a violation of freedom of expression.
The Court’s Assessment
In this case, the concrete manifestation of the Supreme Election Board’s (YSK) decision-making authority during the election period is Decision No. 109, issued regarding the April 16, 2017 referendum. With this decision, the YSK established the procedures and principles to be followed from the beginning to the end of the propaganda period. Article 1/D of the decision’s concluding section regulates the procedures and principles for propaganda in the media and on the internet. It is understood that this regulation is based on Article 55/B of Law No. 298 on the Fundamental Provisions Regarding Elections and Voter Registration.
In the administrative fine decision issued against the applicant, it was stated that the fine was imposed solely on the basis that Article 1/D of YSK Decision No. 109 specifies that political parties may conduct propaganda through the media and the internet, but does not mention that individuals or institutions other than political parties may also engage in propaganda. However, the court reviewing the appeal ruled that the administrative sanction decision was in accordance with procedure and the law without providing further explanation.
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In the aforementioned administrative sanction decision, it is clear that the decision is based on a negative interpretation of the relevant provision; specifically, since the provision in question contains a regulation permitting political parties to engage in propaganda, the petitioner was penalized based on the interpretation that no individual or institution other than political parties may engage in propaganda. However, considering that the primary actors in election propaganda are political parties and candidates, it is clear that the aforementioned YSK decision and Article 55 of Law No. 298, on which this decision is based, target political parties.
Not only does the provision in question not imply that no individual or institution other than political parties may engage in political propaganda, but such an interpretation cannot be said to be consistent with the purpose and content of the election law or the provision itself. Such an assumption would mean that during election periods, individuals and institutions other than political parties could not express their views and opinions regarding the election.
Undoubtedly, the principle of holding elections in a democratic environment is realized through the expression and discussion of the views and opinions of all segments of society. In this context, the YSK decision pertains to the procedures and principles that political parties—the primary actors in elections—must adhere to, and does not contain any prohibitive provisions directed at individuals other than political parties.
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Considering the reasoning of the Prosecutor’s Office and the lower courts in this case, it appears that the decision is based on the assumption that the views published on the TMMOB’s website fall outside the scope of the relevant YSK decision because they were not expressed by a political party. However, the Prosecutor’s Office and the lower courts erred in applying the relevant decision; despite the fact that the action in question did not fall within the scope of this provision, an administrative fine was imposed on the applicant for an action that did not fall under Article 1/D of the relevant YSK decision.
Furthermore, neither the Prosecutor’s Office nor the lower court was able to cite any legal provision granting the authority to intervene regarding the applicant’s action. Furthermore, pursuant to Article 32 of Law No. 5326, the punishment of a violation of a properly issued order is possible only if there is an explicit provision in the relevant law. However, neither the Prosecutor’s Office nor the lower courts made such a determination in this regard.
In the specific case at hand, the intervention carried out based on a decision regarding political parties concerning the statement in question cannot be said to have a legal basis from the perspective of freedom of expression. Consequently, it was concluded that the intervention in the applicant’s freedom of expression was not provided for by law.
The Constitutional Court ruled that freedom of expression had been violated based on the reasons outlined above.