REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 SECOND SECTION

JUDGMENT

ABDULVAHAP CAN AND OTHERS

(Application no. 2014/3793)

8 November 2017

THE FACTS

[9-23] Eğitim ve Bilim Emekçileri Sendikası (“the EĞİTİM SEN”), one of the applicants, is a labour union that carries out its activities with the aim of protecting and developing the economic, social, democratic and cultural rights of the employees working in the field of education and forming a free and democratic business life. The other applicants, who are real persons, are teachers working in the public sector. They are also members and heads of the Batman Branch of the EĞİTİM SEN.

At the beginning of the 2013-2014 school year, the Batman Branch of the EĞİTİM SEN, together with an association called Kurdi Der and the Batman Provincial Organization of the Peace and Democracy Party (“the BDP”), carried out activities themed education in mother tongue. Within the scope of these activities, banners themed “education in mother language” were put on fifteen billboards located in various places in the city centre, which were operated by a company. Thereupon, following the processes initiated by the Batman Governor’s Office, administrative fines were imposed on eight persons, including the applicants, in the amount of 1,500 Turkish liras (TRY).

The applicants contested the administrative fines before the –abolished– Batman 1st Magistrates’ Court (“Magistrates’ Court”). In their petition, the applicants argued that the administrative fine imposed with reference to a unilateral report issued by the police was unlawful. They maintained that they only hung banners and that it was not possible to hold them personally responsible for this. They added that although there had been a sole activity which could be regarded as a labour union activity, eight persons were imposed administrative fines in the amounts of higher than the minimum limit. Therefore, the punishment in question turned into a means of pressure against the labour union.

The official of the company operating the billboards submitted before the Magistrates’ Court that the relevant banners had been hung with reference to a contract signed between the company and a member of the Provincial Organization of the BDP.

The Magistrates’ Court dismissed the objections to the administrative fines with no right of appeal. It stated that within the scope of the event organized by the Batman Provincial Organization of the BDP, the Kurdi Der association and the EĞİTİM SEN –all had signatures on the banners–, an illegal demonstration march had been carried out without any notification to the relevant authority as stated in the banners. It therefore concluded that the administrative fines imposed in accordance with Article 42 of the Misdemeanour Law no. 5236 and Article 27 of the Law no. 2911 on Meetings and Demonstrations were lawful.

V. EXAMINATION AND GROUNDS

24. The Constitutional Court, at its session of 18 November 2017, examined the application and decided as follows.

A. The Applicants’ Allegations and the Ministry’s Observations

25. The applicants stated that they had been imposed administrative fines in the last two years on account of the labour union activities carried out by the members and heads of the EĞİTİM SEN union. The applicants, maintaining that they had not committed any act falling into the scope of Law no. 2911, complained that although the administration had not put forward any allegation, the reasoning of the court decision stated that they had carried out an illegal demonstration march. The applicants further stated that they had not committed the act of hanging banners without permission either, as the said banners had been put on the billboards rented from a private company. Accordingly, no permission had been required for such an activity, and therefore the misdemeanour specified in Article 42 of Law no. 5326 did not occur. The applicants also complained that although it is stipulated by the last sentence of Article 42 of Law no. 5326 that hanging banners of the same content shall be regarded as only one act, the incumbent court had disregarded this provision. According to the applicants, the exact reason relied on by the court to dismiss the applicants’ appeal had been the discomfort felt due to the theme of the banner, namely education in the mother tongue, but not the act of hanging banners. The applicants, underlining that supporting the education in the mother tongue was not unlawful and that it did not constitute an offence, stated that supporting the education in the mother tongue was among the objectives specified in the Rules of the EĞİTİM SEN.

26. The applicants claimed that the report forming a basis for the administrative fine imposed on them had not been duly issued. They argued that the administrative fine imposed with reference to the unilateral report issued by the police without their knowledge was unlawful.

27. The applicants maintained that even if the act of hanging banners in the present case was considered as an offence, imposition of administrative fine on each head of the union higher than the minimum limit without any explanation demonstrated that there was an arbitrary action on the part of the incumbent authorities. The applicants maintained that imposition of an administrative fine upon the authorities’ conclusion through judicial decisions that the acts actually not constituting an offence were to be considered as misdemeanours as a result of strained interpretations served the purpose of punishing the union activities and deterring the employees. The applicants, arguing that these punishments had turned into a systematic practice, pointed out that the court had dismissed their case without any justification. As a result, the applicants claimed that their right to union, their freedom of expression, their right to a fair trial and the principle of equality were violated.

28. The Ministry, in its observations, specified that the legal basis of the alleged interference was Article 42 of Law no. 5326. The Ministry, reiterating that the purpose of the interference was not to punish the applicant but to maintain the public order, stated that the impugned interference pursued a legitimate aim. Referring to the ECHR’s judgment of Mouvement raëlien suisse v. Switzerland ([GC], no. 16354/06, 13 July 2012), the Court underlined that a permission might be required for hanging banners for the purpose of preserving the landscape. The Court, pointing out the discretion vested in the public authorities in terms of the requirement of permission for hanging banners, also indicated that regard being had to the amount of the administrative fine imposed and its not having been entered in the criminal records, the interference had been necessary for the purposes of the democratic order of the society and it had been proportionate.

B. The Court’s Assessment

1. As Regards the Applicant İdris Solmaz

29. Pursuant to Article 47 § 5 of the Code on Establishment and Rules of Procedures of the Constitutional Court no. 6216, dated 30 March 2011, and Article 64 § 1 of the Internal Regulations of the Court, the individual application should be made within thirty days starting from the exhaustion of legal remedies or from the date when the violation is known, if no remedies are envisaged.

30. In the present case, the applicant’s objection to the administrative fine was dismissed by the court on 17 February 2014. The applicant maintained that the court’s decision was served on him on 17 January 2014. On the other hand, according to the notice paper included in the case file, it has been understood that the decision was served on the applicant on 21 February 2014 by attaching it to the door in accordance with Article 21 of Law no. 7201. Accordingly, the applicant lodged an application on 14 April 2014, which was out of the thirty days period that started to run from the communication of the court’s decision to the applicant 21 February 2014. As a result, the applicant failed to lodge an application within the legal period.

31. For the reasons explained above, İdris Solmaz’s application must be declared inadmissible for being time-barred, without any examination in terms of the other admissibility criteria.

2. As Regards the Other Applicants

32. Article 34 of the Constitution, titled “Right to hold meetings and demonstration marches”, provides as follows:

“Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission.

The right to hold meetings and demonstration marches shall be restricted only by law on the grounds of national security, public order, prevention of commission of crime, protection of public health and public morals or the rights and freedoms of others.

The formalities, conditions, and procedures to be applied in the exercise of the right to hold meetings and demonstration marches shall be prescribed by law.”

33. The relevant paragraphs of Article 51 of the Constitution, titled “Right to union”, read as follows:

“Employees and employers have the right to form unions and higher organizations, without prior permission, and they also possess the right to become a member of a union and to freely withdraw from membership, in order to safeguard and develop their economic and social rights and the interests of their members in their labour relations.

No one shall be forced to become a member of a union or to withdraw from membership. The right to form a union shall be solely restricted by law on the grounds of national security, public order, prevention of commission of crime, public health, public morals and protecting the rights and freedoms of others.

The formalities, conditions and procedures to be applied in exercising the right to form union shall be prescribed by law…”

34. The Constitutional Court is not bound by the legal qualification of the facts by the applicants and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). The applicants’ complaints concerning their freedom of expression, their right to a fair trial and the principle of equality must be examined as a whole within the scope of their right to union.

a. Admissibility

35. The alleged violation of the right to labour union membership must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

2. Merits

i. Existence of Interference

36. Right to union safeguarded by Article 51 of the Constitution is a part of the freedom of organization which forms the basis of a democratic society. Freedom of organization stands for the individuals’ freedom to come together by forming a collective entity which represents them in order to protect their own interests. This freedom provides individuals with the opportunity of realizing their political, cultural, social and economic goals in a collective manner. The right to union brings about the employees’ freedom of organization by coming together so as to protect their personal and common interests, and from this aspect, it constitutes a part of the freedom of organization (see the Court’s judgment no. E.2014/177, K.2015/49, 14 May 2015).

37. Right to union is not limited to the right of the employees to form the unions they want and to become member to them. It also includes the guarantee of the existence of the legal entities they form, as well as the specific activities of these legal entities. It is also a requirement of the right to union that the labour unions and their superior institutions, which are formed to protect and develop the economic, social and cultural interests of their members, can freely carry out labour union activities, bring about labour disputes in this respect, go into collective bargaining and agreement, as well as, give and implement strike and lock-out decisions (see the Court’s judgment no. E.2014/177, K.2015/49, 14 May 2015).

38. The right to union also guarantees that members of a labour union are not imposed sanctions due to their membership to the union or taking part in its activities. Accordingly, imposition of a sanction on an employee for his membership to a labour union or for his participation in the union’s activities may constitute an interference with his right to union.

39. In the present case, each applicants, who were the heads of the Batman Branch of the EĞİTİM SEN, were imposed administrative fine of TRY 1,500 in accordance with Article 42 of Law no. 5326 for hanging banners without permission. The disputed banners had been hung within the scope of the activities themed education in the mother tongue carried out by the Batman Branch of the EĞİTİM SEN, the Kurdi Der and the Batman Provincial Organization of the BDP at the beginning of the 2013-2014 school year. Accordingly, it has been understood that the banners had been hung within the scope of the labour union activities. Therefore, imposition of administrative fines on the applicants due to hanging banners, which was an activity falling into the scope of the labour union activities, constituted an interference with the applicants’ right to union.

ii. Whether the Interference Constituted a Violation

40. Relevant part of Article 13 of the Constitution provides as follows:

“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution ... These restrictions shall not be contrary to … the requirements of the democratic order of the society … and the principle of proportionality.”

41. The right to union is not absolute, and it may be restricted in accordance with the criteria set forth in Article 13 of the Constitution. Accordingly, in order to prevent any violation, any interference with the right to union must be prescribed by the law, it must be based on the grounds stipulated in the relevant article of the Constitution, and it must not be contrary to the requirements of the democratic order of the society and the principle of proportionality.

(1) Lawfulness

42. In the present case, the administrative fine imposed on the applicants was based on Article 42 of Law no. 5326. The Court conducted a review relying on this article. Therefore, it has been concluded that the administrative fine in question had a legal basis.

(2) Legitimate aim

43. It is specified in Article 52 § 2 of the Constitution that the right to form a union shall be solely restricted by law on the grounds of national security, public order, prevention of commission of crime, public health, public morals and protecting the rights and freedoms of others.

44. The reasoning of Article 42 of Law no. 5326 provides that “hanging notices or banners made of canvas, paper or etc. in public squares and parks and on the public walls and areas near the streets …” leads to “visual pollution”. It is therefore understood that the prohibition of hanging banners in public places without an express and written permission of the authorities aimed at preventing visual pollution. This can be considered within the scope of the aim of “protection of the public order”. Accordingly, it has been concluded that the administrative fine imposed on the applicants was among the measures taken to maintain the public order and therefore pursued a legitimate aim.

(3) Conformity with the Requirements of the Democratic Order of the Society and Proportionality

(a) General Principles

45. The Constitutional Court has many times explained how the notion of “requirements of the democratic order of the society” should be interpreted. According to this, the measure restricting the fundamental rights and freedoms must serve a pressing social need and must be the last resort likely to be applied (see Tayfun Cengiz, no. 2013/8463, 18 September 2014, § 56; Adalet Mehtap Buluryer, no. 2013/5447, 16 October 2014, §§ 103-105; and Kristal-İş Sendikası [Plenary], no. 2014/12166, 2 July 2015, § 70; within the scope of the freedom of expression, see Bekir Coşkun [Plenary], no. 2014/12151, 4 June 2015, § 51; Mehmet Ali Aydın [Plenary], no. 2013/9343, 4 June 2015, § 68; and Tansel Çölaşan, no. 2014/6128, 7 July 2015, § 51). The inferior courts enjoy a certain margin of appreciation in the assessment of whether there exists such a need. However, the margin of appreciation enjoyed by the inferior courts is subject to the review of the Constitutional Court (see Eğitim ve Bilim Emekçileri Sendikası and Others, no. 2014/620, 25 May 2017, § 73).

46. The Constitutional Court emphasized in its previous judgments that the freedom of organization, in general, and the right to union, in particular, were among the freedoms which concretized the political democracy which was one of the fundamental values enshrined in the Constitution and constituted one of the fundamental values of a democratic society. According to the Court, the manner in which the ideas are expressed in the course of the labour union activities –even if it may be considered inadmissible by the authorities– falls into the scope of the right to union. The Court expressed that the ability to discuss and settle the issues in public forms the essence of democracy and that individuals who exercise their right to union enjoy the protection of the fundamental principles of a democratic society such as pluralism, tolerance and open-mindedness (see Tayfun Cengiz, § 52; and Selda Demir Taze, §§ 48, 49).

47. In this context, freedom of expression, safeguarded by Article 26 § 1 of the Constitution, constitutes one of the basic foundations of a democratic society and is a prerequisite for the development of the democratic society and the self-realization of the individuals. Social pluralism can only be achieved in an environment of free discussion where all kinds of ideas can be freely expressed. In this context, social and political pluralism can only be achieved by peaceful and free expression of all kinds of thoughts (see Yaman Akdeniz and Others, no. 2014/3986, 2 April 2014, § 25).

48. The Court, in its many judgments, has made reference to the ECHR’s case-law which states that the freedom of expression applies not only for “information” or ''thoughts'' which are considered to be in favour, harmless or not worthy of attention, but also for those which are against the State or a part of the society or disturbs them. The Court has confirmed that these are the requirements of pluralism, tolerance and open-mindedness which are the fundamental principles of a democratic society (see Fatih Taş [Plenary], no. 2013/1461, 12 November 2014, § 94; Bejdar Ro Amed, no. 2013/7363, 16 April 2015, § 63; and Abdullah Öcalan, § 95).

49. The legislator may stipulate certain conditions for the exercise of the union rights either for the reasons specified in Article 51 § 2 of the Constitution or for the fulfilment of duties and responsibilities incumbent on the State in accordance with the other provisions of the Constitution. In addition, in order to ensure the compliance with these conditions, sanctions may be imposed in case of a violation. Stipulating certain conditions for the exercise of labour union activities and imposition of a sanction in case of any violation in this respect alone do not violate the right to union. The measure applied and the sanction envisaged to be imposed in case of a violation of the measure must not impair the essence of the right, must be necessary in a democratic society and must be proportionate.

50. The public authorities are required to demonstrate with reasonable grounds that imposition of a sanction as an interference due to expression of thoughts and ideas within the scope of labour union activities was necessary in a democratic society (for similar judgments, see Eğitim ve Bilim Emekçileri Sendikası and Others, § 83).

51. In addition, as regards the complaints under Article 51 of the Constitution, in case of an interference on the part of the public authorities with the right to union, an assessment as to whether the decisions of the inferior courts included “sufficient and relevant justification” is to be made.

(b) Application of Principles to the Present Case

52. In the present application, each applicant was imposed an administrative fine of TRY 1,500 for hanging banners without permission. It is understood that the applicants hung the banners within the scope of the activities themed education in the mother tongue carried out by the EĞİTİM SEN together with other organizations. The public authorities neither established that the contents of the banners constituted an offence, nor did they submit an allegation in this respect.

53. There is no doubt that hanging a banner, themed “education in the mother tongue”, which contains no criminal element is a way of expression of thoughts. In the present application, it was performed as part of labour union activities. Therefore it falls into the scope of the guarantees concerning the freedom of labour union membership and the freedom of expression, enshrined in the Constitution. However, the use of constitutional safeguards to express thoughts by hanging banners does not prevent determining certain prerequisites for hanging banners. Determining such prerequisites does not lead to a violation of the right to union, unless it makes it impossible to enjoy the right or makes it meaningless to bestow the right.

54. According to Article 42 of Law no. 5326, the legislator has required the permission of the competent authority to hang banners in public areas and of the property owner in private places and has prescribed administrative fine for hanging banners without permission. According to the justification of the Law, the requirement of a permission for hanging banners aimed at preventing visual pollution. This cannot be regarded as an unnecessary measure. It must be accepted that the legislator has discretion in this respect. Therefore, it is reasonable to expect the applicants to fulfil this requirement even if it falls into the scope of labour union activities. It cannot be considered that the applicants’ right to union was violated for the sole reason that a permission had been required for hanging banners. However, in terms of the necessity in a democratic society and the proportionality, the issues as to whether a sanction was imposed due to failure to fulfil the requirement of taking permission, whether the nature and severity of the sanction was reasonable, whether the public authorities acted arbitrarily, and whether there existed judicial mechanisms whereby the allegations of unlawfulness could be raised are of importance.

55. The sole violation of the requirement of taking permission may not be considered sufficient to justify the sanction. At this point, it is important to make an assessment as to whether the public order was deteriorated or faced the risk of being deteriorated as a result of hanging banners without permission. In other words, it must also be demonstrated that “the public order” was deteriorated or faced the risk of being deteriorated. In the event that a sanction was imposed in the absence of relevant and sufficient grounds demonstrating that the public order was deteriorated, it may be concluded that the freedom of union was violated (for the assessments in the same vein, see Eğitim ve Bilim Emekçileri Sendikası and Others, §§ 88, 89).

56. In the present case, the administration or the court made no assessment that the banners hung by the applicants deteriorated the public order or posed a danger in this regard.

57. In addition, although it was stated in the reports forming a basis for the administrative fines imposed on the applicants that the applicants had hung banners without permission, the applicants claimed that the said act had not occurred. The applicants maintained that the banners had been put on the billboards rented from a company named N.R.B. Ltd. Şti. by the Batman Provincial Organization of the BDP, and that therefore the said banners could not be said to have been hung without permission. Although the applicants raised these allegations before the court, no assessment was made by the court concerning these allegations.

58. In cases which are the subject matter of individual applications, it is at the discretion of the inferior courts to make an assessment as to whether the alleged misdemeanour occurred and to make an interpretation of the evidence, the facts and the legal rules. Any interference by the Constitutional Court with the discretion of the inferior courts on this matter is not compatible with the purpose of the individual application. However, the Constitutional Court has jurisdiction to review whether the allegations raised by the parties, which are of importance in terms of the determination of whether the impugned misdemeanour had occurred, were examined and whether satisfactory explanations were made in this respect.

59. Article 42 § 1 of Law no. 5326 provides that any person who hangs notices or banners made of canvas, paper or etc. in public places near the streets and in the places belonging to private persons without their consent shall be imposed administrative fine. In addition, Article 42 § 2 of Law no. provides that the 1^st Paragraph shall not be applicable to the banners hung upon the express and written permission of the relevant authorities. Accordingly, hanging banners without an express and written permission of the relevant authorities in the public places and without consent of the property owner in the places belonging to private persons constitute the misdemeanour of “hanging banners” specified in Article 42 of Law no. 5326. In the present case, the banners had been hung on the billboards operated by the N.R.B. Ltd. Şti.. The file of the individual application contains no information or documents indicating that the applicants had also hung banners on the places other than these billboards. It has been found established that the said billboards had been rented from the N.R.B. Ltd. Şti. by the Batman Provincial Organization of the BDP. Regard being had to the fact that the billboards had been rented by one of the shareholders attending the organization, it cannot be said that the private company in question had not given consent to hang banners on the said billboards. It has been understood that determination of whether a permission of the competent public authorities is also required for hanging banners on the billboards operated by private companies and determination of which company is competent are of great importance in the assessment of whether the misdemeanour of “hanging banners” occurred. The court was obliged to make an examination on this matter which was of importance in terms of the occurrence of the misdemeanour and to examine the applicants’ allegations in this respect. However, it appears that the court failed to make an examination and assessment in this regard.

60. The court concluded that during the organization held by the Batman Provincial Organization of the BDP, the Kurdi Der and the EĞİTİM SEN, which had signatures on the banners, an illegal demonstration march was carried out on 16 September 2013 without informing of the competent authority; therefore, the administrative fines imposed on the heads of the institutions having signatures on the banners in accordance with Article 42 of Law no. 5236 and Article 27 of Law no. 2911 were not unlawful. The applicants were imposed administrative fines on the ground that they had committed the misdemeanour of “hanging banners” that was regulated in Article 42 of Law no. 5236. The administration had no argument or evaluation that the administrative fine in question was imposed on account of acting in breach of “the prohibition of incitement” specified in Article 27 of Law no. 2911 or carrying out an unlawful demonstration march. Excluding this assessment which is clearly not related to the act imputed to the applicants, it is seen that the remaining reason is far from satisfying the legal grounds for the administrative fine.

61. As a result, in the absence of an assessment that the banners, which did not include any criminal element and which were hung on the billboards rented from a private company, deteriorated the public order or posed a danger in this respect, imposition of an administrative fine without relevant and sufficient reasons was not necessary in a democratic society. Moreover, the administrative fine imposed on the applicants might create a deterrent factor in terms of carrying out labour union activities.

62. Consequently, the Constitutional Court has found a violation of the right to union safeguarded by Article 51 of the Constitution.

c. Application of Article 50 of Code no. 6216

63. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not.   In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled…   

(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the 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, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown.   The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

64. The applicants sought the reimbursement of the administrative fines as pecuniary compensation.

65. It has been concluded that the right to union was violated.

66. As there is a legal interest in conducting retrial in order to redress the consequences of the violation of the applicants’ right to union, a copy of the judgment must be sent to the (abolished) 1^st Chamber of the Batman Magistrates’ Court (E.2013/1364 and E.2013/1365) for retrial.

67. As retrial has been ordered, it has not been considered necessary to award compensation.

68. The total court expense of 2,006.10 Turkish liras (TRY) including the court fee of TRY 206.10 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicants jointly.

VI.  JUDGMENT

 The Constitutional Court UNANIMOUSLY held on 8 November 2017 that

A. 1. As regards the applicant İdris Solmaz, the application be DECLARED INADMISSIBLE for being time-barred;

2. As regards the applicants Abdulvahap Can, Ender Onur Künteş and the EĞİTİM SEN, the alleged violation of the right to union be DECLARED ADMISSIBLE;

B. The right to union safeguarded by Article 51 of the Constitution was VIOLATED;

C. A copy of the judgment be SENT to the court which replaced the (abolished) 1^st Chamber of the Batman Magistrates’ Court (E.2013/1364 and E.2013/1365) to conduct retrial in order to redress the consequences of the violation of the right to union;

D. 1. The court expense incurred by the applicant İdris Solmaz be COVERED by him;

2. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1,800 be JOINTLY REIMBURSED to the applicants Abdulvahap Can, Ender Onur Künteş and the EĞİTİM SEN;

E. The payment be made within four months as from the date when the applicants apply to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date; and

F. A copy of the judgment be SENT to the Ministry of Justice.