REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

PLENARY

JUDGMENT

METİN BAYAR VE HALKIN KURTULUŞU PARTİSİ

(Application no. 2014/15220)

PLENARY

JUDGMENT

I.     SUBJECT-MATTER OF THE APPLICATION

1.    The application is relevant to the allegations as to the effect that the freedom of expression and the freedom of association were violated in terms of both applicants as an administrative fine was ruled on the first applicant who is the chairman of the board of the provincial organization of the applicant party which failed to organize its provincial congress within three years following the date of establishment; that the principle of legality of crimes and penalties was violated in terms of the first applicant as an administrative fine was imposed without any legal basis; that the right to a fair trial was violated in terms of the first applicant as a fine was imposed without his defense statement being taken by the administration.

II.   APPLICATION PROCESS

2.    The application was directly lodged with the Constitutional Court on 19/9/2014. As a result of the preliminary administrative examination of the petition and its annexes, it has been determined that there is no deficiency to prevent the submission thereof to the Commission.

3.    It was decided on 5/1/2015 by the Head of the Section that the examination of admissibility and merits of the application be carried out together and that a copy be sent to the Ministry of Justice (Ministry) for its opinion.  

4.    The facts, which are the subject matter of the application, were notified to the Ministry on 5/1/2015. The Ministry submitted its opinion to the Constitutional Court on 5/2/2015.

5.    The opinion submitted by the Ministry to the Constitutional Court was notified to the applicant on 11/2/2015. The applicant submitted his counter-opinion to the Constitutional Court on 20/2/2015.

6.   Since it was deemed necessary during the meeting held by the Second Section on 7/5/2015 that the application be ruled upon by the Grand Chamber due to the nature of the application, it was ruled that it be referred to the Grand Chamber in order to be deliberated on as per Article 28(3) of the Internal Regulation of the Constitutional Court.

III.  THE FACTS

A.   The Circumstances of the Case

7.    As expressed in the application form and the annexes thereof, the relevant incidents are summarized as follows:

8.    The second applicant, the People’s Liberation Party, is a party that was legally established and continues to perform its activities. Upon the approval of the Governor’s Office of Bartın No. 2174 of 17/4/2014, an administrative fine of TRY 759 was imposed on the first applicant, Metin Bayyar, because of his capacity as the chairman of the board of the provincial organization of the party. The relevant part of the reasoning of the judgment is as follows:

“In the examination made based on the file of “Bartın Provincial Organization of the People’s Liberation Party” whose headquarters is located in Ankara and which performs activities in our province, it has been determined that they completed their establishment in our province on 26.11.2010 and continued to perform their activities, but they did not organize their provincial congress although 3 (three) years have passed since the date of establishment,

With regard to the matter, “an administrative fine of TRY 759 be imposed on the Chairman of the Board of Bartın Provincial Organization of the People’s Liberation Party in accordance with Article 32/b of the Law of Associations No. 5253 as the Provincial Organization did not organize the provincial congress in due time ...”

9.  The relevant part of the notice of administrative fine imposed by the Bartın Provincial Directorate of Associations on the first applicant based on the aforementioned decision is as follows:

“As it was determined that you established the Provincial Organization of the People’s Liberation Party in the provincial center of Bartın on 26.11.2010, but you failed to organize the provincial congress in due time although 3 (three) years have passed since the date of establishment, an administrative fine of TRY Seven Hundred Fifty Nine (759) was imposed on you through the Approval of the Governor’s Office specified in the reference.”

10. The objection filed by the first applicant against the aforementioned action was rejected with prejudice in respect of the amount of the administrative fine in the judgment of the Office of the Criminal Judge of Peace of Bartın No. 2014/50 Misc. Works of 11/8/2014. The relevant parts of the reasoning of the judgment are as follows:

“ADMISSION, GROUNDS AND ASSESSSMENT; When the application petition, the response letter of the Bartın Provincial Directorate of Associations of 13/06/2014 and all contents of the file are taken into consideration together;

In Articles 14/6, 19/3 and 20/7 of the Law of Political Parties No. 2820, an imperative provision has been regulated as to the effect that the congresses of political parties at every level (grand congress, provincial congress, district congress) shall be organized within the periods to be determined by the bylaw of the party on the condition that it is not less than two years and more than 3 years.

Although the failure of the provincial and district organizations of political parties to organize their ordinary congresses in due time or the failure to organize them more than once does not directly bear the consequence of the automatic dissolution of the organization in that province or district, the duties and titles of the party organs in the relevant province and district will come to an end following the expiry of the congress period.

As is known, in Article 29/1 of the Law of Political Parties No. 2820 with the side heading “general provisions regarding congresses”, it is provided that “the provisions of the Law of Associations No. 1630 of 22 November 1972 which are not contrary to this law shall also apply for the congresses of political parties at every level”.

In Article 118 of the same law with the side heading “General Penal Provisions”, it is provided that “the penal sanctions which are included in the Law of Associations No. 1630 of 22 November 1972 as regards the references made to this law in the relevant law and which are not found to be contrary to the provisions of this law shall also apply for political parties and their officials”.

As mentioned above, it is understood that, according to Articles 19/3 and 20/7 of the Law of Political Parties No. 2820, it is regulated that the district congress shall be organized within the periods to be shown in the bylaw of the party in a way which will not prevent the organization of the provincial congress and the provincial congress shall be organized within the periods to be shown in the bylaw of the party in a way which will not prevent the organization of the grand congress and that political parties are granted discretionary power on the condition that they do not exceed the legal period, and that if the mentioned imperative provision is not complied with, the provision of the Law of Associations shall apply through Articles 29/1 and 118 of the same law.

In Article 32/b of the Law of Associations with the side heading “General Penal Provisions”, it is provided that an administrative fine shall be imposed on the directors of associations who fail to call the general assembly for meeting in due time, organize the general assembly meetings in contravention of the provisions of the law and bylaw or outside the place where the headquarters of the association is located or which is stipulated in its bylaw.

In the evaluation made within the framework of all information and documents within the scope of the file and the legislation explained above; although the counsel of the complainant stated in his petition of objection that they could not organize the first general assembly meeting as they could not enroll any new member since the establishment of the party, that therefore, it was an uncommitable crime, that the provision “... However, the number of members attending this meeting cannot be less than twice the total number of members of the board and the supervisory board” was stipulated in Article 78 of the Civil Code, as it is concluded that as specified above in the provisions of the relevant articles of the Law No. 2820, it is provided that the provincial and district congress shall be organized within the periods to be shown in the bylaw of the party in a way which will not prevent the organization of the grand congress and that the general assembly meeting will be organized within a period which shall not be less than two years and more than 3 years. Although no regulation has been made on how the meeting will be organized if the quorum cannot be reached in the general assembly meeting of the district board of election, a regulation has been made with regard to the quorum of the grand congress and according to such regulation, it is provided that if the quorum cannot be reached in the first call, the quorum shall not be sought as regards the meeting to be organized upon the second call, that with regard to the matters which are not regulated in the Law No. 2820, only the provisions of the Civil Code which are not contrary to this law shall apply, that it is not possible to apply Article 78 of the Civil Code which regulates the quorum for the meeting as it constitutes a contrariety to the imperative provisions regulated in Articles 14/6 and 14/9 of the Law No. 2820 which has the quality of a special law, it is ruled that the objection against the administrative fine imposed as per the relevant legislation be dismissed and the following judgment has been established.”    

11.  This judgment was notified to the applicant on 22/8/2014 and the individual application was lodged on 19/9/2014.

B.    Relevant Law

            12.  Article 19(3) of the Law of Political Parties No. 2820 of 22/4/1983 with the heading “Provincial organization” is as follows:

“The provincial congress shall be organized within the periods shown in the bylaw of the party in a way which will not prevent the organization of the grand congress.”

          13. Article 7(c) of the Bylaw of the People’s Liberation Party with the heading of “Local organizations and congresses” is as follows:

“LOCAL CONGRESSES: They shall be convened every three years in an order which will complement each other.”

14.   Article 29(1) of the Law No. 2820 with the heading “General provisions regarding congresses” is as follows:

“The provisions of the Law of Associations No. 1630 of 22 November 1972 which are not contrary to this law shall also apply for the congresses of political parties at every level.”

            15.    Article 118 of the Law No. 2820 with the heading “General penal provisions” is as follows:

            “Through this Law, the penal sanctions which are included in the Law of Associations No. 1630 of 20 November 1972 as regards the references made to this law in the relevant law and are not found to be contrary to the provisions of this law shall also apply for political parties and their officials.”

16.  Article 104(1, 2) of the Law No. 2820 with the heading “Application due to miscellaneous reasons” are as follows:

“In the event that a political party acts contrary to the imperative provisions of this Law except for Article 101 thereof and to the imperative provisions of other laws that are relevant to political parties, an application against that party shall be made ex officio by the Office of the Chief Public Prosecutor to the Constitutional Court through a letter.

                        If the Constitutional Court finds out contrariety with the relevant provisions, it shall issue a judgment of warning on the relevant party in order for the contrariety to be removed.”

17.   Article 66(2) of the abolished Law of Associations No. 1630 of 22/11/1972 listed in its 10^th chapter titled “Penal provisions” is as follows:

“A heavy fine of up to two thousand liras shall be imposed on the directors of associations who organize their general assembly meetings contrary to laws and their bylaws unless their acts require a heavier penalty. If necessary, it can be ruled by the court that the general assembly meetings organized contrary to the law and bylaw be canceled.”

18.   Article 34 of the Law of Associations No. 5253 of 4/11/2004 with the heading “References made to the laws of Societies and Associations” is as follows:

“The references made to the Law of Societies No. 3512, the Law of Associations No. 1630 and the Law of Associations No. 2908 and their annexes and amendments or certain articles thereof shall be considered to be made to this Law and the article or articles of this Law in which the same matters are regulated. In cases where there is no provision in this Law, the relevant provisions of the Turkish Civil Code No. 4721 in which the same matters are regulated shall be considered to be referred to.”

19.  Article 32(1)(b) of the Law No. 5253 with the heading “Penal provisions” is as follows:

“An administrative fine of five hundred Turkish Liras shall be imposed on the directors of associations who fail to call the general assembly for meeting in due time, organize the general assembly meetings in contravention of the provisions of the law and the bylaw or outside the place where the headquarters of the association is located or which is stipulated in its bylaw. It can be ruled by the court that the general assembly meetings organized in contravention of the provisions of the law and bylaw be canceled.”

20. Article 33(2) of the Law No. 5253 with the heading “Imposition of penalties” is as follows:

“The local civilian authority shall be authorized to decide on the administrative sanctions stipulated in this Law.”

IV.     EXAMINATION AND GROUNDS

21.   The individual application of the applicant (App. No: 2014/15220 of 19/9/2014) was examined during the session held by the court on 4/6/2015 and the following were ordered and adjudged:

A.   The Applicants’ Allegations

22.   The applicants stated that an administrative fine was imposed on the chairman of the board of the provincial organization, Metin Bayyar, on the ground that the provincial congress was not organized within three years although there was no provision in the relevant legislation as to the effect that an administrative fine would be imposed in the event that the provincial congress was not organized. They alleged that the reason why the provincial congress could not be organized was that the quorum prescribed in the law could not be reached yet. They also stated that the imposition of an administrative fine on the directors of the political party which failed to reach the number of members that was sufficient for organizing a general assembly was contrary to the procedure and law as it would make it financially impossible for them to perform their activities and expose the provincial organization to the danger of closure given the fact that most of the directors of the organization of the People’s Liberation Party were workers, unemployed, students and from the poor segments of the society, and would prevent the first applicant from engaging in the activity of organization and association and they alleged that their freedoms of expression and association were violated. They also alleged that the principle of the legality of crimes and penalties was violated regarding the first applicant as an administrative fine was imposed without any legal basis.     

23.  Furthermore, the applicants also alleged that the right to a fair trial of the first applicant was violated as his defense was not taken by the administration which imposed the administrative fine in contravention of the relevant legislation.

B.    The Constitutional Court’s Assessment

24.  Even though the applicants alleged their freedom of expression and, in terms of the first applicant, the principle of the legality of crimes and penalties were violated since an administrative fine was imposed on the director of the political party which failed to reach the number of members that was sufficient for organizing a general assembly although no such fine was prescribed by law and since the objection filed thereagainst was rejected by the court, the essence of the said claims were found to be relevant to the freedom of political association and therefore, the examination and evaluation were carried out under this title.

1.      Admissibility

a.    Applicability

25. According to Article 148(3) of the Constitution and Article 45(1) of the Law on the Establishment and Trial Procedures of the Constitutional Court No. 6216 with the heading “Right to individual application”, in order for the merits of an individual application lodged with the Constitutional Court to be examined, the right which is claimed to have been violated by public power must fall within the scope of the European Convention on Human Rights (Convention) and the additional protocols to which Turkey is a party, in addition to it being guaranteed in the Constitution. In other words, it is not possible to rule that the application which contains an allegation of violation of a right that is outside the common field of protection of the Constitution and the Convention is admissible (Adnan Oktar, B. No. 2012/917, 16/4/2013, § 16). 

26.  In the examination of admissibility of an application, first of all, it should be evaluated whether or not the freedom of political association is within the common field of protection of the Constitution and the Convention.

27.  Article 68 of the Constitution with the heading “Forming parties, membership and withdrawal from membership in a party” is as follows:

“Citizens have the right to form political parties and duly join and withdraw from them.  One must be over eighteen years of age to become a member of a party.

Political parties are indispensable elements of democratic political life.

Political parties shall be formed without prior permission, and shall pursue their activities in accordance with the provisions set forth in the Constitution and laws.

The statutes and programs, as well as the activities of political parties shall not be contrary to the independence of the State, its indivisible integrity with its territory and nation, human rights, the principles of equality and rule of law, sovereignty of the nation, the principles of the democratic and secular republic; they shall not aim to promote or establish class or group dictatorship or dictatorship of any kind, nor shall they incite citizens to crime.

…”

28.  Article 11 of the Convention with the heading of “Freedom of assembly and association” is as follows:

“Everyone has the right to freedom of peaceful assembly and to freedom of association with others including the right to form and to join trade unions for the protection of his interests.

No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

29.  The freedom of political association which covers the freedoms of forming a political party, being a member of, withdrawal from and engaging in activities in a political party is regulated in Article 68 of the Constitution separately from the general freedom of association stipulated in Article 33 of the Constitution. The freedom of association is prescribed as a whole in Article 11 of the Convention and no separate regulation with regard to the freedom of political association is stipulated. In practice, it is accepted through the case-law of the European Court of Human Rights (ECtHR) that political parties will also make use of the protection prescribed in Article 11 of the Convention (Türkiye Birleşik Komünist Partisi (The United Communist Party of Turkey) v. Turkey [BD], App. No: 19392/92, 30/1/1998, § § 24, 25; Refah Partisi (The Welfare Party) v. Turkey, [BD], App. No: 41340/98, 41342/98, 41343/98 and 41344/98, 13/2/12003, § 50).

30.  Although Article 11 of the Convention stipulates that this right includes the right to form trade unions with others, the ECtHR, in its case-law related to the subject, concluded that trade unions were only one of the forms of association that were to be taken under protection as obviously understood from the phrase “including” specified in the article and that, for this reason, it could not be stated that those who drafted the Convention had an objective of not granting political parties the protection of the right prescribed in the article.    Following this interpretation with regard to the wording of the aforementioned article, the ECtHR stated that political parties were necessary for the proper functioning of democracy and concluded that there was no doubt as to the effect that political parties made use of the protection prescribed in Article 11 of the Convention by considering the importance that political parties held for democracy (Türkiye Birleşik Komünist Partisi (The United Communist Party of Turkey) v. Turkey, §§ 24, 25).

31.  The Constitutional Court stated that political parties were not only institutions which gave voice to societal requests towards the state power, but also vital institutions which concretized, interpreted and directed social directives to the state, and that therefore, political parties were under the protection of the relevant rules of the Constitution and of Articles 10 and 11 of the Convention which regulate the freedom of “association” and of “opinion and expression” (AYM, E.2008/1 [Closure of a Political Party], K.2008/2, K.T. 30/7/2008).

32.  Due to the reasons explained, it is obvious that the freedom of political association is within the common field of protection of the Constitution and the Convention and is within the competence of the remedy of individual application to the Constitutional Court ratione materiae.

b.    Existence of the Victim Status

33.  Article 46(1) of the Law No. 6216 with the heading “Those who have the right to individual application” is as follows:

“The individual application can only be lodged by those a current and personal right of whom is directly affected due to the act, action or negligence that is claimed to result in a violation.”

34.      In Article 46 of the Law No. 6216, the persons who can lodge an individual application are listed and according to paragraph (1) of the aforementioned article; two main prerequisites are present in order for a person to be able to lodge an individual application with the Constitutional Court. The first of these is that “a current right of the applicant is violated” due to the act or action or omission of the public power that is made the subject matter of the application and alleged to have resulted in the violation and that the applicant alleges that s/he has been “aggrieved” as a result of this and the second of these is that the person is “personally and directly” affected by this violation (Onur Doğanay, B. No: 2013/1977, 9/1/2014, § 42). 

35.  The ECtHR states that the word “victim” stipulated in Article 34 of the Convention denotes the person directly affected by the act or omission in issue (Brumarescu v. Romania [BD], App. No: 28342/95, 28/10/1999, § 50).

36.  Within this scope, it is necessary to determine whether or not the applicants’ freedom of political association was directly affected by the administrative fine which is the subject matter of the application.

i.    The First Applicant

37.  In the present case, the administrative fine which is the subject matter of the application was imposed on the first applicant on the ground that he failed to fulfill his obligation prescribed in the law with regard to the political party of which he was the director of the provincial organization thereof. Therefore, it is obvious that a current right of the first applicant was personally and directly affected. As it is understood that there is no other reason for inadmissibility, it needs to be ruled that the application is admissible in respect of the first applicant.

ii.    The Second Applicant

38.  The applicants alleged that the freedom of political association of the legal personality of the party was also violated as the relevant administrative fine would make it financially impossible for the People’s Liberation Party to perform activities and expose the provincial organization to the danger of closure given the fact that most of the directors of the organization of the Party were workers, unemployed, students and from the poor segments of the society.

39. The Constitutional Court delivered judgments of inadmissibility due to “the lack of jurisdiction ratione personae” on the ground that no intervention was made in any right of the legal personality of the community and the condition of being directly affected was not fulfilled in the applications lodged by the organization of which they were members on behalf of them because of the interventions that only affected the rights of their members (Turkish Association of Pediatric Oncology Group, B. No: 2012/95, 25/12/2012, § 23; The Society for the Improvement, Sustenance of Yusufeli District and the Protection of Its Cultural Heritage, B. No: 2013/1212, 12/9/2013, §§ 22, 23). The ECtHR accepts that organizations cannot claim that they become victim because of the acts that only affect the rights of their members as the condition of being directly affected is not fulfilled (Maupas and Others v. France, App. No: 13844/02, 19/9/2006, § 14; Norris, National Gay Federation v. Ireland, [the Commission], App. No: 10581/83, 16/5/1985, p. 135).

40.  The principle as to the effect that no individual application can be lodged by organizations on behalf of their members because of the acts that only affect the rights of them is accepted by the Constitutional Court and the ECtHR. In the present case, it is necessary to determine whether or not the freedom of political association of the legal personality of the party was directly affected due to the administrative fine imposed on the first applicant who is the member of the party and the director of the provincial organization. 

41.  In the application lodged by the association established by a group of people who were against the construction of a dam in the region where their houses were located for the sole purpose of stopping the dam construction and of ensuring their representation by it in the legal process together with the other real person applicants as to the effect that their right to a fair trial was violated, the ECtHR accepted the status of victim by stating that the association was a party to the lawsuit in domestic law (Gorraiz Lizarraga and Others v. Spain, App. No: 62543/00, 10/11/2004, § 36).

42. Moreover, in cases where a member was prevented from being a candidate from the party list in the elections due to the interventions which arose from the legislation or were made by national authorities, the ECtHR accepted that it could also be alleged by the legal personality of a political party that a right, such as the freedom of free election, which had a limited area of implementation with real persons in the previous case-law and that the legal personality of a party had the status of victim independently from its members (Russian Conservative Party of Entrepreneurs v. Russia, App. No: 55066/00 and 55638/00, 11/1/2007, §§ 53- 67).

43. Although political parties have a legal personality independent from their members, the bodies that execute their activities are formed by their members. In the present case, the administrative fine was imposed on the first applicant in his capacity as the director of the provincial organization with regard to the failure of the assembly of a body of the provincial organization of the party. According to Article 19 of the Law No. 2820, provincial chairmen are one of the bodies that form the provincial organization of political parties. In this case, there is a close relation between the administrative fine and the bodies and activities of the second applicant. Therefore, it is necessary to accept that a current and personal right of the second applicant was directly affected by the relevant fine. As it is understood that there is no other reason for inadmissibility, it needs to be ruled that the application is admissible also in respect of the second applicant.

2.    Merits

44. In its letter of opinion, the Ministry, in summary, asserted that according to the ECtHR although states were free to implement their own penal policies, they needed to fulfill the requirements of Article 7 of the Convention and that this guarantee needed to be interpreted and implemented in a way that would provide effective safeguards against arbitrary prosecution, conviction or penalization in line with its purpose and objective. It also specified that the principle of certainty which is one of the fundamental principles of a state of law was related to legal security according to the Constitutional Court and that the legislative, executive and judicial powers which represented the public authority needed to act in respect for this principle. It stated that the boundaries of legal regulations as regards crimes and penalties needed to be explicitly drawn by the legislative body, that the executive body must not create any crime and penalty through its regulatory actions without being based on any authority whose boundaries were determined by law and that the judicial body which is tasked with implementing criminal law must not extend the scope of crimes and penalties stipulated in laws by way of interpretation. It alleged that the relevant principles needed to be taken into consideration during the phase of merits examination.

45.   In their counter-opinions which they submitted against the opinion letter of the Ministry, the applicants reiterated their allegations included in their application petitions.

a. General Principles

46. The ECtHR emphasized that notwithstanding its autonomous role and particular sphere of application, Article 11 of the Convention needed to be evaluated together with Article 10, that opinions and the freedom to express them was one of the objectives of the freedom of association and that this situation further increased the importance of political parties in ensuring pluralism and the proper functioning of democracy (Türkiye Birleşik Komünist Partisi (The United Communist Party of Turkey) v. Turkey, §§ 42, 43).

47. The ECtHR also stated that the freedom of expression of opinions regarding the choice of the legislature was inconceivable without the participation of a plurality of political parties representing the different shades of opinion to be found within a country’s population and that accordingly, political parties made an irreplaceable contribution to political debate, which was at the very core of the notion of a democratic society (Türkiye Birleşik Komünist Partisi (The United Communist Party of Turkey) v. Turkey, § 44).

48. Regulations on political parties vary depending on the legal systems and traditions of states.  While special regulations with regard to political parties are in place in some states, general regulations about organizations also apply for political parties in some of them.  According to the Venice Commission (Commission), special regulations for political parties are not a requirement for a functioning democracy. However, where special regulations are in place, they should be in the form of a legislative action rather than an executive action and should not restrict the activities and rights of political parties in a disproportionate manner. These regulations should focus on ensuring that political parties have an efficiency in proportion to their importance for a democratic society and guaranteeing the protection of their rights in order for them to properly perform their activities. Moreover, political parties must at a minimum exercise all rights afforded to other associations as well as the rights to nominate candidates and participate in elections (Guidelines on Political Party Regulation, [Commission], 25/10/2010,  § § 28, 29).

49.  As regards the rules on the internal functioning of a party, the Commission stated that they could be best regulated through the party bylaw or the principles elaborated and agreed to by the party itself and that the matters related to the internal functioning of the party must generally be free from state interference. According to the Commission, even though some states have prescribed some obligations in certain matters so as to ensure democracy within the party in line with the importance of political parties in a democratic society,  the basis and applicability of such regulations must be carefully considered and moreover, such regulations must also be restricted so as not to unduly interfere with the activities of political parties as regards their own internal functioning (Guidelines on Political Party Regulation, § § 62, 97). While the Commission emphasized that public authorities must refrain from bearing any excessive control and inspection function over political parties, it exemplified the broad authority of inspection as the regulations to be made in matters such as membership, number and frequency of party congresses and meetings or the activities of local organizations (Compilation of Venice Commission on Opinions and Reports Concerning Political Parties, [Commission], 16/10/2013, p. 21).

50. With regard to the authorities which will implement the regulations related to political parties, the Commission stated that the impartiality of authorized bodies must be guaranteed both in law and in practice, that the scope and boundaries of the authority granted must be explicitly determined in the regulations and that it was necessary to ensure that authorized bodies apply the rules in an unbiased and non-arbitrary manner (Guidelines on Political Party Regulation, § 10). In this context, the Commission also stated that the supervisory power over political parties should be vested in an independent authority not part of the executive in order to reduce bureaucratic control over political parties, ensure transparency and build institutional trust (Compilation of Venice Commission on Opinions and Reports Concerning Political Parties, p. 21).

51.   In the light of the principles explained above, first of all, it will be determined whether or not an intervention exists and then whether or not the intervention is based on valid grounds in assessing whether or not the freedom of political association was violated in the incident which is the subject matter of the application.

b.  Concerning the Existence of the Intervention

52. It should be admitted that the administrative fine imposed on the first applicant in his capacity as the director of the provincial organization of the political party on the ground that he failed to fulfill his obligation with regard to the assembly of the provincial organization constitutes an intervention in the applicants’ freedom of political association.

c.  Whether the Intervention Constitutes a Violation

53. Unless the intervention mentioned above fulfills the conditions stipulated in Article 13 of the Constitution and rests on one or more of the valid grounds prescribed in Article 68(4) of the Constitution, there will be a violation of the mentioned articles of the Constitution. For this reason, it is necessary to determine whether or not the intervention is in line with the conditions of being based on one of the reasons stipulated in the relevant article of the Constitution, not infringing its essence, not being contrary to the letter and spirit of the Constitution, the requirements of the democratic social order and of the secular Republic and the principle of proportionality.

54. First of all, the applicants allege that the intervention does not have any legal basis.

55. The administrative authorities and the court of instance referred to Article 32(1)(b) of the Law No. 5253 as the legal basis of the intervention.

56.   It is not sufficient to be based on an article of law in form in order to achieve the condition of lawfulness. It is also necessary that the relevant article of law is certain and foreseeable by individuals. As a matter of fact, as specified in many judgments of the Constitutional Court, one of the fundamental principles of “the state of law” stipulated in Article 2 of the Constitution is “certainty”. According to this principle, it is necessary that legal regulations be clear, explicit, understandable and implementable in a way that will not give rise to any hesitation and doubt in terms of both individuals and the administration, and that moreover they include some protective guarantees against the arbitrary practices of public authorities. The principle of certainty is associated with legal security; an individual should have an opportunity of learning from the law in a certain accuracy which legal sanction or consequence is attributed to which concrete action and case, and which authority of intervention they grant to the administration. Only in this case can an individual foresee the liabilities which are incumbent upon him/her and regulate his/her behaviors accordingly. Legal security requires that rules be foreseeable, that individuals can have confidence in the state in all its actions and procedures, and that the state abstains from methods that may damage this feeling of confidence in its legal regulations (AYM, E.2009/51, K.2010/73, K.T. 20/5/2010; AYM, E.2009/21, K.2011/16, K.T. 13/1/2011; AYM, E.2010/69, K.2011/116, K.T. 7/7/2011; AYM, E.2011/18, K.2012/53, K.T. 11/4/2012).

57.  While the ECtHR expresses that compliance with domestic law is a prerequisite for fulfilling the criterion of “lawfulness”, it also states that the relevant regulation should be accessible by individuals to the extent that it will give them the opportunity of having sufficient information on the details of legal rules to be applied in a case and also be clear and certain in such a way as to ensure that they will regulate their conducts in order for it to be considered that the condition of being prescribed by law stipulated in Article 11(2) of the Convention is fulfilled (Sunday Times v. the United Kingdom, [BD], App.No: 6538/74, 26/4/1979, § 49).

58.   The administrative fine which is the subject matter of the application was imposed based on Article 32(1)(b) of the Law No. 5253 by reference to Article 118 of the Law No. 2820. The relevant fine was imposed by the governor’s office based on Article 33 of the Law No. 5253.

59.  In Article 118 of the Law No. 2820, it is prescribed that the penal sanctions which are included in the Law of Associations No. 1630 and are not considered to be contrary to the provisions of the Law No. 2820 shall also apply for “the references made to the Law No. 1630” with regard to political parties and their officials. Accordingly, in the mentioned Article reference was not made to all penal sanctions stipulated in the abolished Law No. 1630; the imposition of the penal sanctions in the relevant Law on political parties and their officials was restricted to the references made to the Law No. 1630 with the Law No. 2820.  Therefore, first of all, it needs to be determined whether or not such reference was made in terms of the administrative fine in the present case.

60. In Article 29 of the Law No. 2820, it is stipulated that the provisions of the abolished Law No. 1630 will also apply for “the congresses of political parties at every level”. Accordingly, it is understood that the relevant provisions of the Law No. 1630 are referred to in the Law No. 2820 in terms of the congresses of political parties at every level and that it is prescribed that these provisions shall apply. On the other hand, it is provided in Article 34 of the Law No. 5253 that the references made to the Law No. 1630 in other laws will be considered to be made to this Law.

61. Given the aforementioned matters, it is possible to apply Article 32 (1)(b) of the Law No. 5253, which prescribes a penal sanction on the directors that fail to call the general assembly for meeting or to organize the meeting in accordance with the legislation, also on the officials of political parties who fail to call to the meeting the congresses of political parties at every level or to organize the congresses in accordance with the legislation, as per Article 118 of the Law No. 2820.

62. Yet, the administrative fine on the first applicant who is the official of the political party in the case at hand was imposed by the governor’s office as per the provision of Article 33(2) of the Law No. 5253 with the heading “Imposition of Penalties” that reads “the local civilian authority shall be authorized to decide on the administrative sanctions stipulated in this Law”. However, the provisions related to associations only in terms of “penal sanctions” are referred to in Article 118 of the Law No. 2820, but no reference is made in terms of the procedure of imposition of penal sanctions and the authority that will impose these sanctions.

63. On the other hand, it is prescribed in Article 118 of the Law No. 2820 that the penal sanctions as regards associations will apply not only on the officials of political parties, but also on “political parties”. However, the Constitutional Court is granted the venue of ruling on the closure of a political party or deprivation thereof from State aid in cases listed in the Law No. 2820 as per Article 101 of the Law No. 2820 and on the warning of a political party as per Article 104 of the Law No. 2820 in case of contrariety with the imperative provisions which are listed outside Article 101 of this Law and with the imperative rules of other laws with regard to political parties.

64. Therefore, it cannot be considered that the legislator refers through Article 118 of the Law No. 2820 to the provisions with regard to associations in terms of “the authority which will impose the penal sanctions” regulated in Article 33 of the Law No. 5253 apart from “the penal sanctions” regulated in Article 32 of the same Law.

65. Accordingly, it is not possible to say that civilian authorities have legal authority in terms of imposing sanctions on the officials of political parties. However, in Articles 101 and 104 of the Law No. 2820, the Constitutional Court is granted with the venue of imposing sanctions only in terms of political parties themselves and no such clear venue is granted in terms of the officials of political parties.

66. According to Article 68 of the Constitution, political parties are one of the indispensable elements of democratic political life. One of the requirements of materializing this constitutional principle is, as also specified in the aforementioned reports by the Venice Commission, is to clearly define the boundaries and scope of the authorities granted to public authorities with regard to the regulations on political parties and, therefore, to prevent political parties and the officials thereof from encountering arbitrary practices.

67. Given the aforementioned matters, although it is possible to impose the penal sanction prescribed in Article 32(1)(b) of the Law No. 5253 regarding the officials of political parties who fail to call to the meeting the congresses of political parties at every level or to organize the congresses in accordance with the legislation, it is concluded that the authority which will impose this penal sanction is not defined by law in a certainty that needs to be present in a state of law.

68.  Due to the reasons explained, it is necessary to rule that the administrative fine which is the subject matter of the application did not fulfill the condition of “lawfulness” and that the applicants’ freedom of political association was violated.

Serruh KALELİ did not agree with this conclusion.

69. As it is necessary to send the file to the relevant court in order to hold a retrial for the removal of the violation and the consequences thereof, it is not deemed necessary to make an examination over the allegation of the first applicant as to the effect that his right to a fair trial was violated as his defense was not taken by the administration that imposed the administrative fine in a way that was contrary to the relevant legislation.

3.    Article 50 of the Law No. 6216

70.  The applicants filed a request for the lifting of the judgment of the Office of the Criminal Judge of Peace of Bartın No. 2014/50 Misc. Works of 11/8/2014 through which the objection filed against the administrative fine was rejected.

71.  Article 50(2) of the Law No. 6216 with the heading of “Judgments” is as follows:

“If the determined violation arises out of a court judgment, the file shall be sent to the relevant court for holding a retrial in order for the violation and the consequences thereof to be removed, In cases where there is no legal interest in holding the retrial, a compensation can be adjudged in favor of the applicant or the remedy of filing a case before general courts can be shown. The court which is responsible for holding the retrial shall deliver a judgment based on the file, if possible, in a way that will remove the violation that the Constitutional Court has explained in its judgment of violation and the consequences thereof.”

72. By considering that the administrative fine which is the subject matter of the application violated the applicants’ freedom of political association, a legal benefit is deemed to be present in the holding of a retrial in the case with regard to the objection against the relevant administrative fine. It is necessary to rule that the file be sent to the relevant Court to hold a retrial in order to remove the violation and the consequences thereof.

73. It is necessary to rule that the trial expenses of TRY 1,713.70 in total composed of the fee of TRY 213.70 and the counsel’s fee of TRY 1,500.00 which were made by the applicants and determined in accordance with the documents in the file be jointly paid to the applicants.

V.     JUDGMENT

In the light of the reasons explained, it is held on 4/6/2015

A. UNANIMOUSLY that the applicants’ allegation as to the effect that their freedom of political association guaranteed in Article 68 of the Constitution was violated is ADMISSIBLE,

B. BY MAJORITY OF VOTES and with the dissenting opinion of Serruh KALELİ that the applicants' freedom of political association guaranteed in Article 68 of the Constitution WAS VIOLATED,

C. UNANIMOUSLY that a copy of the judgment be SENT to the relevant Court to hold a retrial in order for the violation and the consequences thereof to be removed,

D.  UNANIMOUSLY that it is not necessary to make an examination in terms of the first applicant’s allegation as to the effect that his right to a fair trial was violated,

E.  UNANIMOUSLY that the trial expenses of TRY 1,713.70 in total composed of the fee of TRY 213.70 and the counsel’s fee of TRY 1,500.00 be JOINTLY PAID TO THE APPLICANTS,

F. UNANIMOUSLY that the payment be made within four months as of the date of application by the applicants to the Ministry of Finance following the notification of the judgment; that in the event that a delay occurs as regards the payment, the legal interest be charged for the period that elapses from the date, on which this period comes to an end, to the date of payment,

G. UNANIMOUSLY that a copy of the judgment be sent to the applicants and the Ministry of Justice in accordance with Article 50(3) of the Law No. 6216.

DISSENTING OPINION

An administrative fine was imposed on Metin BAYYAR, one of the applicants, in his capacity as the Chairman of the Board of the Provincial Organization of Bartın based on Article 32/b of the Law of Associations No. 5253 upon the approval of the Governor’s Office of Bartın on the ground that he did not organize the provincial congress within three years following the date of establishment of his party.

The objection filed against the mentioned action was finally rejected by the Office of the Criminal Judge of Peace of Bartın through a judgment in which the following reasonings were given:

That the congress of the party at every level would be organized within due period as per Articles 14/6, 19/3, 20/7 of the Law of Political Parties No. 2820, that its provisions that are not contrary to the Law of Associations would apply for the congresses of Political Parties at every level and the penal sanctions would also apply for Political Parties and their officials as per Articles 29/1 and 118 of the Law of Political Parties and that a fine would be imposed on the directors who failed to call the General Assembly to the meeting within due period as per Article 32/b of the Law of Associations No. 1630.

The applicant alleged that a fine was imposed based on the provision as regards the failure to call the General Assembly although there was no provision in the legislation as to the effect that an administrative fine would be imposed in the event that the Provincial Congress was not organized, that the organization of the party which did not have a sufficient number of members to organize the General Assembly and whose members were unemployed, workers, students and from the poor segment was in financial difficulty and the provincial organization would face the danger of closure because of the fine imposed (TRY 759), that its activity of association would be prevented and that his right to a fair trial was violated as the fine was contrary to the legislation.

Moreover, in the application lodged on behalf of the legal personality of the party because of the fine imposed, it was seen that it was alleged that the principle of legality of crimes and penalties was violated because of the same reasonings and that the mentioned fine posed a threat on the poor party’s freedom of association, assembly and of the dissemination of thoughts.

In its reasoning, regarding the application lodged on behalf of the Political Party, the Grand Chamber of our Court for individual applications stated that the party was an indispensable element of association of the democratic political life, that these needed to be respected, that these institutions which directed social directives to the state were under the protection of Articles 10 and 11 of the ECHR (the freedom of thought and expression) and, in this sense, found solely being a political party sufficient for admitting that the legal personality of the People’s Liberation Party was affected by the freedom of association.

First of all, it is necessary to evaluate this matter in terms of my dissenting opinion.

There is no hesitation as to the effect that political parties are bodies which are indispensable and need to be protected within the scope of democratic plurality and the order of organization and their duty of reflecting social reflexes on political life and order. It is also true that the legal regulations to be made by the state on political parties should not prevent and disproportionately restrict their efficiency in the democratic order and that measures need to be taken for the protection and functionality of their rights.

Although democracy within the party and the internal functioning of political parties can be ensured by leaving them to the party bylaw and principles outside the area of intervention of the state, it is compulsory for the public authority to control and supervise political parties against the harm they can inflict on both the society and itself in proportion to their importance in terms of the public interest that it will bring given the contribution of the reason of existence of political parties to the democratic order in the common ground beyond serving only to its principal values.

As a matter of fact, it is compulsory to protect the directors of Political Parties against the dangers of making the freedom of association non-exercisable in terms of the activities of parties which are unarguably compulsory in the democratic order and are performed through their directors. It should be beyond argument that the supervision and control of the obligation of directors to act in line with the provisions of laws and regulations on behalf of the public and the prevention of misuse of their authorities are indispensable for the freedom of association, expression and thought and of democracy within a party.

This being the case, it was not stated in the file at hand how and why the fine imposed on the director who was found to have failed to fulfill the duty incumbent on him in the file at hand impaired the freedom of association of the political party. Expressing with a perception of the dimension of threat an abstract and presumptive case such as the party being composed of poor people and the unemployed and thus may become unfunctional as specified in the allegations of the application and the admission thereof by our court are away from being a convincing truth.

In the aforementioned circumstances, it will be inevitable to match the legal personality of the political party with the fines to be imposed on the directors of the party for their personal negligence, fault or crimes and personal responsibilities and the responsibilities of the legal person will become inseparable.  When the importance attached to a political party in accordance with the current understanding of democracy as to the effect that a Political Party should not be closed because of the fault of its director is not ignored, the necessity of the independence of responsibilities and the importance attached to the freedom of association will be kept under protection. In the evidence of all these matters, the approach of assuming that the relevant administrative fine was also imposed on the Political Party and that therefore, the party was a victim and the relevant victim affected by the violation of right does not accord with the actual and legal reality in the case at hand.

The Political Party has to convincingly express how it faces a difficulty in fulfilling the freedom of association, thought and expression as a vital institution which has political objectives that will guide the society because of an administrative fine of TRY 759.  In its financial audits of political parties, the Constitutional Court questions how a political party which does not have any financial revenue and expense within a year meets its rental expenses and communication fees or, in other words, that it should have a vital minimum income; otherwise, it may not find the balance sheets that it submits and the audit of accounts to be lawful.  

The fine imposed on the Political Party is not disproportionate so as to prejudice the principles stipulated in Article 68 of the Constitution and Articles 10 and 11 of the ECHR and it does not have the quality and range that will create victimhood on the legal personality of the party.  I did not agree with the majority opinion as regards the admission of the fact that the freedom of association of the legal personality was affected through abstract qualification while it was necessary not to admit the application lodged on behalf of the legal personality.

Although there is no problem in the admission of the application in respect of the real person, our Court, in its evaluation in terms of the Merits, evaluated the claims within the scope of the intervention in the freedom of association by accepting that the applicant Metin BAYYAR, being the Chairman of the Board of the Provincial Organization of the Party, also carried the title of the body of the party.

 It is necessary to draw attention to the fact that our Constitutional Court, in the application No. 2012/95, delivered a judgment of “Inadmissibility” due to the “Lack of jurisdiction Ratione Personae” on the ground that no application was lodged with regard to any right of the legal personality of the community in the applications lodged by the organization (in our case, the legal personality of the Political Party) of which they were members on behalf of them due to the interventions which affected the rights of their members (in our case, the fact that the Political Party would have difficulty in engaging in political activities due to financial difficulty) and that the condition of being directly affected was not fulfilled.

The ECtHR also accepts that organizations cannot claim that they are victimized by the actions which affect the rights of their members.

In the case at hand, although it was accepted that the freedom of association which is considered to be the right of the legal personality of the party was directly affected by the administrative fine of TRY 759 imposed on the director of the party.

No explanation was made by our court as to how a (disproportionate) intervention which would eliminate all fields of activity of the organizational personality was admitted to have been made through a fine which had to be imposed on the director who failed to fulfill a small-scale liability that was assigned to him by law in order to protect the party.

Moreover, if a political party organization which is among the indispensable elements of a democratic order through its corporate identity can be dissolved and fail to fulfill its targeted activities and functionality because of a petty fine, assuming that such a weak structure will fulfill the superior objectives that are assigned to it and are expected from it constitutes a disproportionate contradiction.

In the judgment, the characteristic of the fine imposed was not discussed, what would cause the party to be directly affected by the fine was not explained and the causality was established at an abstract level rather than a concrete one.

Moreover, the reason why the fine imposed remained outside the scope of duty of the director of the party was not explained, either.

It is not possible to agree with the statements regarding uncertainty in the legislation as specified in the judgment. The intervention relies on a legitimate basis and takes its power from the Law of Political Parties No. 2820 and other laws.

Due to the reasons explained, I do not agree with the reasoning of the majority as to the existence of the violation of right as the intervention which cannot be considered to be disproportionate and has a legitimate basis remains outside the scope of the freedom of association of the Political Party on the ground that there is no finding as to the existence of violation in the intervention and that moreover, the responsibility that caused the imposition of the fine results from Article 2 of the Law of Political Parties that is specifically towards the aim of protecting the party and cannot be associated with the bodies of a Political Party.