The 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). An administrative fine was imposed on the applicant pursuant to Article 32 of the Misdemeanors Law No. 5326 due to certain publications containing opinions regarding a constitutional amendment that were posted on the TMMOB’s website. The applicant objected to the aforementioned administrative fine; the magistrate’s court reviewing the objection definitively rejected the applicant’s appeal.
Claims
The applicant claims that the imposition of an administrative fine against him for the views he published on a website constitutes a violation of his freedom of expression.
The Court’s Assessment
The concrete manifestation of the Supreme Election Board’s (YSK) decision-making authority during the election period in the present case is Decision No. 109, issued regarding the April 16, 2017, referendum. With this decision, the YSK specified the procedures and principles to be followed from the start 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 of Elections and Voter Registers.
The administrative penalty decision imposed on the applicant states that the fine was imposed solely on the grounds that Article 1/D of YSK Decision No. 109 specifies that propaganda via the media and the internet may be conducted by political parties, but does not mention that individuals or institutions other than political parties may also engage in propaganda. The court reviewing the objection, however, ruled that the administrative sanction decision was in accordance with procedure and the law without providing further explanation.
In the aforementioned administrative sanction decision, it is evident that the ruling was based on the negative implication of the relevant provision; specifically, since the provision in question contains a regulation permitting political parties to engage in propaganda, the applicant 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, upon which this decision is based, are directed at political parties. Not only does the aforementioned article not imply that no individual or institution other than political parties may engage in political propaganda, but an interpretation in this direction cannot be said to be consistent with election law or the purpose and content of the article in question. Such an assumption would imply that, during election periods, individuals and institutions other than political parties cannot express their views and opinions regarding the election. Undoubtedly, the principle of conducting 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 follow and does not contain any prohibitive provisions directed at individuals other than political parties.
Considering the reasoning of the Prosecutor’s Office and the lower courts in the present case, it appears that the decision was based on the premise that the views published on the TMMOB’s website fell outside the scope of the relevant YSK decision because they were not made by a political party. However, the Prosecutor’s Office and the lower courts erred in applying the relevant decision, resulting in the imposition of an administrative fine on the applicant for an action that does not fall under Article 1/ D of the relevant YSK decision, even though the action in question did not fall under that provision. Furthermore, neither the Prosecutor’s Office nor the lower court has been able to cite any legal provision authorizing intervention regarding the applicant’s action. Moreover, pursuant to Article 32 of Law No. 5326, the punishment of a violation of a properly issued order is only possible where there is an explicit provision in the relevant law. However, neither the Prosecutor’s Office nor the lower courts have made any such determination regarding this matter.
In the specific case at hand, the intervention carried out based on a ruling concerning political parties regarding the statement made cannot be said to have a legal basis in terms of freedom of expression. Consequently, it has been 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 aforementioned grounds.