Events
The applicants participated in various meetings in Ankara on different dates to protest their own dismissal from public office or dismissals in general and the practices during the state of emergency, and to support former teacher S.Ö. and former academic N.G., who had begun a hunger strike due to their dismissal from their positions.
The Ankara Governor’s Office took decisions to ban meetings throughout the province or make them subject to permission as an extraordinary measure. Administrative fines were imposed on the applicants for various dates between late 2016 and mid-2018 for participating in the aforementioned meetings, pursuant to Article 32 of Law No. 5326 on Misdemeanors for acting contrary to orders. The applicants’ objections to the administrative fines imposed on them were definitively rejected by the criminal 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 their right to organize meetings and demonstrations had been violated because administrative fines had been imposed on them on the grounds that they had acted contrary to orders by participating in various meetings.
The Court’s Assessment
In the specific case, following the coup attempt on July 15, 2016, during the state of emergency declared thereafter, in accordance with Article 11(m) of Law No. 2935, the right to hold meetings and demonstrations was prohibited throughout Ankara and, except for the prohibition decision dated May 24, 2017, for 24 hours, and subject to permission pursuant to the decision dated January 21, 2018. Although the aforementioned Law also provides for less restrictive measures such as postponing meetings, making them subject to permission, or specifying the place and time of the meeting, the administration exercised its discretion during the state of emergency for a long period of time (a total of approximately 11 months, 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. Likewise, our country is primarily affected by the activities of terrorist organizations in neighboring countries. Precisely for this reason, continuous interventions in fundamental rights based solely on the justification that there is a terrorist threat in our country, without proceeding from concrete facts, carry the risk of eliminating the essence of the right. Moreover, while most of the prohibition decisions in question refer to the support actions for S.Ö. and N.G. and the disturbance caused by these actions, and some refer to the disturbance caused to the environment by actions carried out at high volume 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 any 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 prohibition decision dated 30/8/2017, which the Ankara Governorate did not announce to the public in an appropriate manner, 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 the administration to act arbitrarily.
In the Ankara Governorate’s January 21, 2018, decision to impose restrictions, unlike the other prohibition decisions in question, no time period was specified; the validity period of the decision was linked to a military operation conducted abroad, the end date of which was entirely within the discretion of the administration and had no foreseeability for individuals. It is clear that such a determination, which is far from certainty and predictability, raises the issue of arbitrariness on the part of the administration. For this reason, it has been assessed that the administrative fines imposed pursuant to the Ankara Governorate’s decision to impose a ban dated January 21, 2018, whose validity period is linked to the end of the operation, are not in line with the requirements of a democratic society for this reason.
Assessment in Light of Article 15 of the Constitution
The Ankara Governorate, with its prohibition decisions on the subject of the application, has created a burden that has the same effect as categorical prohibition decisions of indefinite duration on individuals’ right to organize meetings and demonstrations. However, it has in no way demonstrated that this burden outweighs the danger to public order faced by those who have lost their jobs or their relatives and who are trying to make their voices heard or find allies for their ideas within the framework of emergency measures. Furthermore, the administration resorted to the most severe measure provided for in the relevant Law without demonstrating in any way that lighter measures would be insufficient to establish a fair balance between the competing values in the case in question. In addition, no violent incidents were found to have occurred at the meetings in question. It was assessed that the prohibition decision dated 30/8/2017, which was not announced to the public, and the decision to grant permission dated 21/1/2018, the validity period of which was determined as the end of a military operation, completely eliminated predictability and could therefore lead to arbitrariness. It was concluded that these decisions, which could lead to arbitrary practices, were in no way 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 based on the stated reasons.
