REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
FIRST SECTION
JUDGMENT
HINT ASEEL HAYVANLARI KORUMA VE GELİŞTİRME DERNEĞİ AND HİKMET NEĞUÇ
(Application no. 2014/4711)
22 February 2017
On 23 March 2017, the First Section of the Constitutional Court found no violation of the freedom of association safeguarded by Article 33 of the Constitution in the individual application lodged by Hint Aseel Hayvanları Koruma ve Geliştirme Derneği and Hikmet Neğuç (no. 2014/4711).
THE FACTS
[8-27] In the present case lodged by the Hint Aseel Hayvanları Koruma ve Geliştirme Derneği (“the Association”) operating in the province of Düzce and its chair Hikmet Neğuç, the Association and its members were subject to numerous criminal investigations for organizing unauthorized Hint Aseel cocks fighting events under the Charter of the Association.
The application lodged by the Association for organizing a cock fighting event was rejected in April 2012 by the Directorate General for Nature Conservation and National Parks for being contrary to the Animal Protection Act and the Law of Associations.
However, three reports issued by the police in 2013 revealed that the applicant Association continued fighting cocks in its building in spite of this decision. A criminal case was filed by the Düzce Chief Public Prosecutor’s Office against the applicant and his three friends for contravening the Law of Associations. On 12 November 2013, the Düzce Criminal Court sentenced the applicant and his three friends individually to ten months’ imprisonment and ordered dissolution of the Association. The applicant’s petition against this decision was dismissed by the Düzce Assize Court.
28. The Constitutional Court, at its session of 22 February 2017, examined the application and decided as follows:
29. According to the applicants, the Association was established by virtue of the Law no. 5253 and was organising competitions among Hint Aseel cockerels as part of their activities. The applicants alleged that the police intervention in their competition events and the penalties imposed on the Association and its members were in breach of the freedom of association enshrined in Article 33 of the Constitution. The applicants requested finding of a violation and a re-trial.
30. In its observations, the Ministry mentioned the importance of the freedom of association in democracies; however, it recalled that this was not an unlimited freedom. The Ministry secondly indicated that the dissolution of the Association was justified and necessary in a democratic society. The Ministry further invited the Court, with regard to the assessment on proportionality, to take account of the fact that the Association was found to have held cock-fighting events four times and that administrative fines were imposed on the Association two times.
31. In reply to the Ministry’s observations, the applicant presented a book titled “The Aseel Cockerels Bred in Turkey and Cockerel Competitions” (“Türkiye'de Yetiştirilen Asil Horozlar ve Horoz Müsabakaları”) which was published with the contributions of the Poultry Federation.
32. Relevant paragraphs of Article 33 of the Constitution, titled “Freedom of association”, which will be taken as basis for the assessment on the allegation, reads as follows:
“Everyone has the right to form associations, or become a member of an association, or withdraw from membership without prior permission. ...
Freedom of association may be restricted only by law on the grounds of national security, public order, prevention of commission of crime, public morals, public health and protecting the freedoms of other individuals.
The formalities, conditions, and procedures governing the exercise of freedom of association shall be prescribed by law.
Associations may be dissolved or suspended from activity by the decision of a judge in cases prescribed by law. ...”
33. The Court declared the alleged violation of the freedom of association admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.
a. Existence of Interference
34. Due to the Association’s activities, the applicant Hikmet Neğuç was sentenced to 10 months’ imprisonment and a judicial fine of 820 Turkish liras (TRY) while the Association was dissolved. Therefore, there has been an interference with the applicants’ freedom of association.
35. 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.”
36. The above-mentioned interference shall constitute a violation of Article 26 of the Constitution unless it satisfies the requirements laid down in Article 13 of the Constitution.
37. Therefore, it must be examined whether the interference in the present case was prescribed by law as required by Article 13 of the Constitution, relied on one or more than one of the legitimate aims set out in Article 26 § 2, and was in compliance with the requirements of the democratic order of the society and the principle of proportionality.
38. The Court has concluded that Article 32 (p) of Law no. 5253 constituted the legal basis of the restriction.
39. The Court has concluded that the above-mentioned decision constituting an interference was part of a series of measures towards the prevention of crime and that it pursued a legitimate aim.
(a) General Principles
40. The matter before the Court is whether it was proportionate and necessary in a democratic society to shut down an association and impose punishment on its members due to the commission of an act that is listed by law as a criminal offence.
41. Right to found an association is an integral part of the freedom of association, which is the freedom of individuals to come together to protect and defend their own interests and to create collective formations to realise their ideals and needs. The basis of freedom of association is undoubtedly freedom of expression. Freedom of expression encompasses expression and dissemination of thoughts without fear, as well as coming together around these thoughts, formation of individual communities and the right to form an association within this framework.
42. Freedom of association gives individuals the opportunity to realise their political, cultural, social and economic goals as a community. Regardless of whether they have a political purpose, the existence of organisations under which citizens will come together and pursue common goals is an important element of a sound society. In democracies, such an “organisation” has fundamental rights which need to be respected and protected by the State (see, with regard to trade unions, Tayfun Cengiz, no. 2013/8463, 18 September 2014, §§ 31 and 32).
43. The right to found an association, which is a form or a special aspect of freedom of association, offers individuals not only the liberty of establishing an association but also the right to become a member of the association, to participate in the activities of the association and to protect the interests of its members. Associations are groups of people who are organised and equipped with legal personality, where they consistently bring together their knowledge and efforts for the realisation or pursuit of a specific purpose. Article 33 of the Constitution basically aims to provide protection against arbitrary interferences of public authorities during the exercise of the freedom of association.
44. Since the freedom of association and the right to found association -one of the subtypes of the former- are regarded within the Constitution as an indispensable part of a democratic society, there is a strict supervision over whether limitations to be imposed on this right are necessary in a democratic society.
45. The Court has previously explained, on many occasions, what should be understood from the expression “requirements of the democratic order of the society”. Accordingly, a measure that restricts the fundamental rights and freedoms must correspond to a social need and be used as a last resort (see Tayfun Cengiz, §§ 50-56; see also, in the context of the freedom of expression, 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). Inferior courts enjoy a certain margin of appreciation in the determination of whether or not such a social need is present. Nevertheless, this margin of appreciation is subject to the Court’s review.
46. On the other hand, it should also be examined whether any restriction imposed on fundamental rights and freedoms is a proportional limitation that allows for the least interference possible with fundamental rights, provided that the relevant interference is required for the democratic order of the society (see the Court’s judgment no. E.2007/4, K.2007/81, 18 October 2007; Tayfun Cengiz, §§ 53 and 54; see also, for explanations with regard to the principle of proportionality in the context of the freedom of expression, Kamuran Reşit Bekir [Plenary], no. 2013/3614, 8 April 2015, § 63; Bekir Coşkun, §§ 53 and 54; Abdullah Öcalan [Plenary], no. 2013/409, 25 June 2014, §§ 96-98; Tansel Çölaşan, §§ 54 and 55; and Mehmet Ali Aydın, §§ 70-72). The Court must therefore determine whether a fair balance was struck between the measures deemed necessary for the achievement of the legitimate aim of “prevention of commission of crime” set out in Article 33 § 3 of the Constitution and the freedom of association.
47. In striking this balance, regard should be had to the type of the criminal offence to be prevented and the corresponding punishment, as well as its potential damage or risk to the public order and safety, rule of law, public health and the environment, and social peace. Even if individual rights and freedoms are not damaged due to the commission of the offence, it is a constitutional duty to protect and guarantee the society’s living conditions. One of these living conditions is the environment, together with all the living things inside. Article 56 § 1 of the Constitution which reads “Everyone has the right to live in a healthy and balanced environment.” lays an emphasis on this constitutional obligation. Indeed, animals are also protected by laws for this very reason. Therefore, the balance should be struck between the right to found association and the “need” for protection of animals in relation to the interest of the public.
48. Although the moral status of animals has been the subject of long-standing debates, there is no definitive consensus on the subject. It is a moral standard accepted by everyone that animals must be treated “well”. It is well-known that, like humans, many animal species are capable of feeling. Animals may have numerous interests; however, it must be acknowledged that, as long as they are capable of feeling, at least avoiding pain and suffering is in their interest. This idea finds its meaning in “the principle of humane treatment” that constitutes the basis of the normative law of animal rights and dates back to the 19th century. This principle points out that the human interests can be preferred over animal interests but under unavoidable circumstances, which means that animals must not be unnecessarily exposed to pain. The existence and nature of the moral status of animals are becoming more intense day by day. Nevertheless, even if strong objections are raised against it, the principle of humane treatment accepted by modern democracies is not only a moral but also a legal rule. In fact, the laws concerning the protection of animals prohibits causing “unnecessary” pain to animals.
49. In applications similar to the present one, another point to be taken into account during the necessity test is the fact that “animal competitions” are a part of the Turkish culture, as it is so in the cultural heritage of many other nations.
50. Lastly, it must be kept in mind that the belief that ill-treatment of animals is a direct injustice against them forms the basis of animal protection laws. Therefore, when performing the necessity and proportionality tests in applications concerning the protection of animals, account should also be taken of the extent to which the animals are affected by the treatment towards them.
51. Another assessment to be made in the present application is on the question whether it is possible to completely shut down an association by a court decision where its members have committed criminal offences. It is clear that a shut-down is a highly severe interference with the freedom of association. On the other hand, it is a freedom that may be restricted if the method or instruments of managing the association gives rise to concerns. Therefore, it must be acknowledged that, under certain circumstances it is possible to shut down associations.
52. It depends on the intentions and attitude of the members of the organisation whether an association’s purpose and activities are punishable under the Law no. 5253 or whether the association can be shut-down pursuant to the Turkish Civil Code (Law no. 4721, dated 22 November 2011). Only natural persons may be punished under the Criminal Code because being guilty of an offence points to the criminal liability which is only borne by natural persons. Nonetheless, as Article 32 (p) of the Law no. 5253 clearly states, it is legally possible for an association to be held criminally responsible and shut down by a criminal court. Similarly, an association may be dissolved by a court upon the request of a public prosecutor by virtue of Article 89 of the Law no. 4721 if the purpose of the association becomes unlawful or immoral. Because, with its members and representative bodies, the association can create a collective will that is separate from each of its individual members and capable of realising its own purpose and acting independently. Thus, associations may be shut down if criminal laws have been breached as a result of the association’s own purpose or independent activities. The decisive factor in this context is the fact that the behaviour of its members may be imputed to the association. In other words, associations can only be shut down if they have become the centre of criminal offences. In that case, it should be examined whether the nature of the association is shaped by the offences committed by its members.
53. A shut-down imposed on an association based on Articles 30 (b) and 32 (p) of Law no. 5253 read in conjunction with Article 33 of the Constitution is legally independent from any conviction imposed on a member or official of the association. Any consideration to the contrary would result in the punishment of other members of the association because of the unlawful attitude of its founders in case of a shut-down, thereby removing the individuality of criminal liability (see the Court’s judgment no. E.1973/3, K.1973/37, 18 December 1973, 19 December 1973 and 20 December 1973). For this reason, courts do not only examine whether or not there have been breaches of criminal laws but also inspect whether the association have become “the source of the offence”. Only then will it be possible to say that the main objective of the founders and members of the association was to prepare a ground to be able to commit criminal activity under the name of the association.
54. A shut-down imposed on an association on the above-mentioned grounds cannot be interpreted as the imposition of an additional punishment on persons who have violated criminal provisions of the law. The aim of these provisions is to evaluate a specific threat against the public safety and order posed by the foundation or continued existence of an organisation that plans or commits criminal acts. Such organisations which have been established with a view to committing offences or which have become a centre of criminal activity even if they were not established for the purpose of committing offences create a special threat against the interests safeguarded by laws. By using their organised human and financial resources and pursuing their inherent motives, these organisations facilitate and support criminal acts. The remaining members of such an organisation who are not involved in commission of offences either suffer a weakening in their sense of responsibility or decline in their individual resistance against committing an offence. It must be acknowledged that such organisations create a higher motivation to commit offences.
55. It is within the power of the courts of law to decide to shut down an association. In this scope, the centreline of the assessments to be made in respect of the case giving rise to the present application is to ascertain whether inferior courts were able to plausibly set forth that the grounds on which they relied in their decisions constituting the interference in question were “necessary in a democratic society” and compatible with the “principle of proportionality” in respect of the restriction imposed on the freedom of association.
56. Prior to the events giving rise to the application, the applicants had applied to the competent authorities for permission to hold a “cockerel competition”. However, the administration rejected this request by indicating that it was prohibited under the Law no. 5199. It has been understood that, following the rejection, the applicants continued organising activities, which had not been permitted by the administration, under the name of “competition”.
57. The accused stated that the Association had been inspected several times by the police and that fines had been imposed on them over the course of the proceedings. Besides, the applicant Hikmet Neğuç continued to make similar statements in his application form. The information in the case file also supports this conclusion. The police had found and reported, on three occasions, that the members had held cock-fights in the Association’s premises during the short period of time preceding the filing of criminal proceedings against the Association and its members. Nonetheless, the applicants maintain, in brief, that what caused the police raids was not the act of holding fights between animals, which is proscribed by laws. They argue that their activities merely comprised of a contest among animals.
58. It is not the Court’s duty to make assessments on the facts of the case within the meaning of the criminal law. Both the police reports and the relevant court decisions acknowledged that the activity engaged in by the applicants was animal fighting. Nevertheless, the applicants failed to demonstrate what kind of a “competition” their activity was in the proceedings before the Court. Therefore, there is no ground for disregarding the fact that the act of holding fights among animals was committed in the Association, as described in the Law no. 5199.
59. The applicant asserted, both before the inferior courts and the Court, that cockerel competitions should be allowed under certain conditions as a part of the cultural heritage. The book submitted by the applicant mentioned that there was no particular legal regulation in our national legislation concerning cockerel competitions and stated “It is hard to expect that allowing cockerel competitions to continue in their current form will be an option that can be adopted by the public, animal lovers and scientific circles” (“Horoz müsabakalarının bugünkü şekliyle sürdürülmesine izin verilmesi seçeneğinin ise gerek kamuoyu gerekse hayvan sever ve bilimsel çevreler tarafından kabul görmesi zordur”) (see Türkiye'de Yetiştirilen Asil Horozlar ve Horoz Müsabakaları, p. 3). The present application relates not to the matter of allowing a traditional sports competition where all kinds of supervision and control measures have been taken, but to the shut-down imposed on an association found to have organised cock-fighting events in an illegal and unsupervised manner.
60. In this respect, the Court does not find any fallacy in the first-instance court’s conclusion to the effect that the association became a centre of acts and actions contrary to the Law no. 5199. Because, even though it had been founded seemingly with different aims, the association’s activities turned into a platform serving and facilitating the commission of criminal offences; it mainly served for holding fights between animals for betting and other purposes under the so-called objective of “animal protection”.
61. Besides, it must be acknowledged that, irrespective of differences of opinion on animal-human relationships, it is both morally and legally wrong to expose animals to pain for the sole purpose of entertainment or pleasure. It is out of question to consider such an abuse necessary.
62. It is possible that the imposition of a shut-down on the Association, which is quite severe as a measure, and punishment of its members found guilty of criminal offences might harm this right. Under the particular circumstances of the present case, on the other hand, the applicant Association’s activities are not related to either the freedom of expression as noted in general or any other right protected by the Constitution. Therefore, there has been no interference with any other rights enshrined in the Constitution.
63. Accordingly, the Court observes that the competent courts decided on the most reasonable sanction on the matter. Regard being had to the fact that it is the legislator’s authority to determine the punishment prescribed by laws for the imputed offence and to the margin of appreciation afforded to the courts, the Court concludes that the shut-down of the Association and the placement of the second applicant under probation for a certain period of time by means of suspending his imprisonment sentence were necessary and proportionate in a democratic society.
64. Consequently, the Constitutional Court has found no violation of the freedom of association safeguarded by Article 33 of the Constitution.
For these reasons, the Constitutional Court held UNANIMOUSLY on 22 February 2017 that,
A. The alleged violation of the freedom of association be DECLARED ADMISSIBLE;
B. The substantive aspect of the freedom of association safeguarded by Article 33 of the Constitution was NOT VIOLATED;
C. A copy of the judgment be SENT to the Ministry of Justice.
