THE FACTS

[6-22] The applicant, the People’s Liberation Party (“HKP”), is a political party, and the other applicants are the officials of district organizations of the HKP. The applicants, who are natural persons, were imposed fines on various dates for failing to hold the provincial/district congress within the prescribed period. These applicants’ challenges against the administrative fines were dismissed, with final effect, by the incumbent courts as the decision whereby an administrative fine was imposed was not contrary to the procedure and the relevant law. The final decisions were served on the applicants on 5 March 2014, 22 August 2014 and 9 October 2014. They then lodged an individual application with the Court.

IV. EXAMINATION AND GROUNDS

 23. The Constitutional Court, at its session of 9 June 2016, examined the application and decided as follows:

A. The Applicants’ Allegations

24. The applicants stated that an administrative fine had been imposed on the chairpersons of the Administrative Boards of the District Organizations on the grounds of a failure to hold the district congress within the last three years in spite of existence of no provision under the relevant guidelines which entails imposition of an administrative fine in case of a failure to hold district congresses; that the reason underlying the failure to hold the district congress had been the lacking of the legally prescribed quorum to hold a plenary session; and that the imposition of an administrative fine on the administrators of a party, the members of which were not in a number sufficient to hold plenary sessions, - especially considering the fact that the majority of the administrators of People's Liberation Party are workers, unemployed people, students, and those from the low-income group of the community - would preclude the party from performing its activities in monetary terms, lead to the closure of its district organizations, and hamper the involvement of the applicants in organizational and associational activities. The applicants accordingly alleged that their freedoms of expression and assembly due to the imposition of such an administrative fine which was in breach of the procedure and the law, as well as the principle of legality of criminal offences and penalties and the right to fair trial due to imposition of an administrative fine without any legal basis and in the absence of their defence submissions.

B. The Court’s Assessment

 25. Although the applicants alleged that their freedom of expression had been violated due to the unlawful imposition of an administrative fine on the administrator of a political party that has no quorum to hold a plenary session as well as to the dismissal by the incumbent court of their challenge against it, along with the violation of the principle of legality of criminal offences and penalties in terms of the applicant who are natural persons, the Court conducted the examination and assessment from the standpoint of the freedom of political association as these allegations in essence relate to this freedom.

1. Admissibility

 26. The principles which concern the facts that the freedom of political association is under the joint protection of the Constitution and the European Convention on Human Rights (“the Convention”) and that the legal person applicant (HKP) has victim status within the scope of the impugned incident and which relate to the admissibility of the application and are applicable to the cases similar to the present application have been set forth for the first time in the decision of Metin Bayyar and People’s Liberation Party (no. 2014/15220, 4 June 2015, §§ 25-42). Examining the present application, the Court has found no ground to depart from the principles set forth in the said decision.

 27. Therefore, the application must be declared admissible for all of the applicants yet there being no other grounds for its inadmissibility.

2. Merits

 28. Freedom of expression is a means to convey and circulate the ideas and thereby enabling individuals and communities to be informed. Expressing the ideas including those opposing to the majority by any means, gaining stakeholders for the ideas expressed, materializing the ideas, and convincing others for the materialization thereof are amongst the pluralist democracy’s requirements. Therefore, freedom of expression is of vital importance for the functioning of democracy (see Fikriye Aylin and others, no. 2013/6154, 11 December 2014, § 29).

 29. Freedom of association is the manner by which the freedom of expression is exercised via collective tools as well as enables individuals to protect their own benefits and to collectively achieve their political, cultural, social, and economic goals. Therefore, in interpretation and implementation of the Article 11 of the Convention, the case law established by the European Court of Human Rights (“the ECHR”) under Article 10 of the Convention must be taken into consideration (see Freedom and Democracy Party v. Turkey, no. 23885/94, 8 December 1999, § 37; Öllinger v. Austria, no. 76900/01 , 29 June 2006, § 38).

 30. As, under the freedom of association, the goal of political parties is to protect the ideas and freedom to express them, to establish a ground for enabling the individuals to select and make a choice, to ensure the proper functioning of democracy, and to ensure “pluralism”, “broadmindedness”, “tolerance”, and similar concepts go beyond spurious concepts, these concepts are regarded as the indispensable means of democracy. The ECHR has stated that the free expression of the opinion of the people in the choice of the legislature is inconceivable without the participation of a plurality of political parties representing the different shades of opinion to be found within a country’s population. Thereby, by relaying this range of opinion, political parties make an irreplaceable contribution to political debate, which is at the very core of the concept of a democratic society (see United Communist Party of Turkey v. Turkey, no. 19392/92, 30 January 1998, §§ 43, 44).

 31. In the present case, the impugned administrative fines were imposed pursuant to Article 32 § 1 (b) of Law no. 5253 by a reference to Article 118 of Law no. 2820 due to the failure to hold ordinary congress within the three-year period following the formation. The fines in question were imposed by the local civilian authority in accordance with Article 33 of the Law no. 5253.

 32. The content of the regulations on political parties, the Venice Commission’s opinions on the authorities that will implement these regulations and the principles applicable to cases similar to the present one during the examination on the merits are elaborately assessed in the decision of Metin Bayyar and People’s Liberation Party. Regard being had to the administrative sanction imposed in the present case, the authority imposing the sanction and the relevant statutory regulations, there is no ground to require the Court, in the present case, to depart from the principles set forth in relation to the assessment on the existence of any interference and as to whether the interference has constituted a violation as well as from the assessments as to the lawfulness condition.

 33. In the concrete case, the administrative fines were imposed, on the applicants acting in the capacity of political party officials, by the Governor’s and District Governor’s Offices pursuant to the provision of “The local civilian authority is authorized to decide on the administrative sanctions prescribed herein”, which is laid down in Article 33 § 2 “Imposition of penalties” of Law no. 5253. However, Article 118 of Law no. 2820 refers to the provisions regarding associations only in terms of “penal sanctions” but not to the procedure of implementation of these sanctions and to the authority to impose them.

 34. On the other hand, Article 118 of Law no. 2820 sets forth that the penal sanctions regarding associations will be applicable not only to the political party officials, but also to the “political parties”. However, the Court is empowered to close a political party or to deprive any political party of governmental aids in cases specified in the Law under Article 101 of Law no. 2820 and to give a warning, by virtue of Article 104 of the Law no. 2820, to political parties if any of the imperative provisions included in the same Law, except for Article 101 thereof, as well as of the imperative provisions laid down in other laws on political parties.

 35. Therefore, it cannot be considered that the lawmaker refers, by Article 118 of Law no. 2820, to the provisions on associations also in terms of “the authority to impose the penal sanctions” prescribed by Article 33 of Law no. 5253 in addition to “the penal sanctions” set forth in Article 32 of the same Law (see Metin Bayyar and People’s Liberation Party, § 64).

 36. Accordingly, the civilian authorities cannot be said to have statutory power in imposing sanctions on the political party officials. However, Articles 101 and 104 of Law no. 2820 empower the Constitutional Court to impose sanctions only on the political parties in their capacities as a legal person but do not grant any explicit power in terms of the political parties’ officials.

 37. As stated by the abovementioned principles, it is necessary to explicitly set out the limitation and scope of the powers granted to public authorities within the scope of the statutory regulations on political parties and, by this means, to prevent the imposition of potentially arbitrary sanctions on the political parties and officials thereof.

 38. Although, in consideration of the aforesaid matters, it is possible to impose the penal sanction, which is prescribed by Article 32 § 1 (d) of the Law no. 5253, on the political party officials that have failed to convoke any congress of the political party at every level and to organize the congresses in accordance with the statutory regulations, the Court has concluded that the authority to impose this penal sanction is not assigned by law with sufficient certainty as required in a state governed by rule of law.

 39. For these reasons, it must be decided that the impugned administrative fines failed to satisfy the “lawfulness” condition and that the applicants’ freedom of political association was violated.

Mr. Serruh KALELİ did not agree with this conclusion.

40. As the files must be sent to the relevant court for a retrial with a view redressing the violation and the consequences thereof the Court has not found it necessary to examine the alleged violation of the right to a fair trial as the administration imposing the administrative fine on the applicants failed to receive their defence submissions.

3. Application of Article 50 of Code no. 6216

 41. The applicants requested the revocation of the decisions issued by the Gaziantep Magistrates’ Court and Bartın and Borçka Magistrate Judges whereby their challenges against the administrative fines had been dismissed.

42. Paragraph (2) “Judgments” of Article 50 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

“Where an ascertained violation stems from a court order, the file shall be returned to the relevant court for rehearing to eliminate the violation and consequences thereof. In the cases where no legal interest is to be derived from rehearing, a compensation judgment can be pronounced in favour of the applicant or the applicant can be referred to general courts to file an action. The court that is under the rehearing obligation shall, where possible, adjudge on the basis of the file in order to eliminate the violation and consequences thereof as having been noted by the Constitutional Court in its judgment for violation.”

 43. Considering the fact that the applicants’ freedom of political association was violated by virtue of the impugned administrative fines, the Court has found a legal interest in conducting a retrial in the cases where the applicants’ challenges against the said administrative fines were dismissed. The file must be sent to the incumbent court for a retrial to redress the violation and consequences thereof.

 44. 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 each of the applicants who are natural persons.

 V. JUDGMENT

For these reasons, the Constitutional Court held on 9 June 2016:

A. UNANIMOUSLY that the alleged violation of the freedom of political association be DECLARED ADMISSIBLE;

B. By MAJORITY and by dissenting opinion of Mr. Serruh KALELİ that the freedom of political association safeguarded by Article 68 of the Constitution was VIOLATED;

C. UNANIMOUSLY that there is NO NEED TO EXAMINE the alleged violation of the applicants’ right to a fair trial;

D. UNANIMOUSLY that a copy of the judgment be SENT to the relevant courts for a retrial with a view to eliminating the violation and consequences thereof;

E. UNANIMOUSLY that the court expenses of TRY 2,006.10, consisting of the court fee of TRY 206.10 and the retainer of TRY 1,800.00, be JOINTLY REIMBURSED to the APPLICANTS;

F. UNANIMOUSLY that the payment be made within four months as from the date when the applicants file their applications with the Ministry of Finance following the notification of the judgment; In case of any default in payment, the legal INTEREST BE CHARGED for the period elapsing from the expiry of four-month time limit to the payment date; and

G. UNANIMOUSLY that a copy of the judgment be SENT to the Ministry of Justice.

DISSENTING OPINION OF JUSTICE SERRUH KALELİ

An administrative fine was imposed on the applicants for contravening the Law on Associations, and their challenges were dismissed, with final effect, by the incumbent Magistrate Judges.

The applicants alleged that the imposition of an administrative fine would preclude the People’s Liberation Party from executing its activities in monetary terms, may lead to its closure, and would hamper their involvement in organizational and associational activities. They accordingly alleged that the impugned fine had been in violation of the principle of lawfulness and the right to a fair trial.

 The Court adjudged by majority that the freedom of political association, which is safeguarded by Article 68 of the Constitution, had been violated.

The same matter had been examined also under the individual application no. 2014/15220, and I also submitted dissenting opinion in that application.

Relying on the same grounds specified in the individual application no. 2014/15220, I disagreed the majority opinion that the rights enshrined in Article 68 of the Constitution had been violated due to the administrative fine as I consider that the impugned intervention has been lawful, necessary, proportionate and fell outside the scope of the right.