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On 11 July 2019, the Plenary of the Constitutional Court found a violation of the freedom of expression safeguarded by Article
26 of the Constitution in the individual application lodged by Mehmet
Aksoy (no. 2014/5433).
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THE FACTS
[8-36] The applicant, a sculptor, constructed the impugned
monument in Kars, upon the approval of the Regional Board of Conservation of
Cultural Heritage (“Board”), on the basis of the contract he executed with the
relevant Municipality.
Following the construction of the monument, the Board decided to
have the structures -in the field where the monument was located- demolished
for having obtained “new findings”. Accordingly, the Municipal Council issued
an order to demolish the said structures.
The applicant obtained a decision on the stay of execution of
the order. However, after the decision had been lifted, the Municipality
started the demolition work. The applicant’s action for annulment of the
impugned work was dismissed.
Upon the applicant’s appeal, the Council of State ultimately
upheld the dismissal decision.
V.
EXAMINATION AND GROUNDS
37.
The Constitutional Court, at its session of 11 July 2019,
examined the application and decided as follows:
A.
The Applicant’s
Allegations and the Ministry’s Observations
38.
The applicant made the following allegations and requests:
i.
The applicant argued that the statute of humanity symbolised
peace with Armenia, that it was used in order to secure the right-wing votes in
the parliamentary elections of June 2011, and, for this reason, it was
demolished unlawfully.
ii.
He maintained that works of art were a part of the freedom of
expression and that the State could not interfere with works of art on the
basis of certain subjective evaluations. According to the applicant, the State was
under an obligation pursuant to Article 64 of the Constitution to protect
artistic activities and artists and to take the measures necessary to that
effect. The work of art at issue had been built in compliance with law and with
the permission of the authorised boards. The applicant claimed that there had
been a violation of the freedom of expression due to the demolition of the
statute.
iii.
He alleged that the Government applied pressure on both the
administration and the judiciary during the demolition process. In the
applicant’s view, there had been a violation of the right to a fair trial due
to the court rulings that had been rendered with prejudice to the principle of
independence of courts.
iv.
Relying on alleged violations of Articles 2, 26, 64 and 138 of
the Constitution, the applicant requested a finding of violation and claimed
non-pecuniary compensation.
39.
The Ministry’s observations as to the merits may be summarised
as follows:
i.
The Ministry contended that the decision to demolish the statue
in question did not stem from the applicant’s artist personality or the
artistic character of the work but pursued the aim of protecting third parties’
right to property and the immovable property containing cultural assets; thus,
there had not been an interference with the applicant’s freedom of expression.
ii.
It added that there were competing interests in the present
case, namely the applicant’s freedom of expression on the one hand, and the
Treasury’s right to property as well as the public’s right to conservation of
cultural values. In view of the provisions of the Law no. 2863, the legislature
preferred the conservation of cultural values. Therefore, a fair balance was
struck in the present case between the applicant’s interests and the interests
of the Treasury and the public.
iii.
The Ministry concluded that the impugned interference was
proportionate and in line with the requirements of a democratic society because
the demolition of the statue pursued the aims of protecting constitutional
rights to property and to conservation of cultural values.
40.
The applicant, in his counter-arguments to the Ministry’s
observations, stated that there was no truth to the impression that the statue had
been erected unlawfully. The applicant indicated that the statue had been built
in accordance with his contract with the Municipality and with the approval of
the Regional Conservation Board (Koruma Bölge Kurulu).
B.
The Court’s Assessment
41.
Relevant parts of Article 26 of the Constitution, which will be
taken as basis of the assessment on the allegation, reads as follows:
“Everyone
has the right to express and disseminate his/her thoughts and opinions by
speech, in writing or in pictures or through other media, individually or
collectively. This freedom includes the liberty of receiving or imparting
information or ideas without interference by official authorities...
The
exercise of these freedoms may be restricted for the purposes of ... public
order, … protecting the ... rights … of others...
The
formalities, conditions and procedures to be applied in exercising the freedom
of expression and dissemination of thought shall be prescribed by law.
42.
Article 27 § 1 of the Constitution, titled “Freedom of
science and arts”, provides as follows:
“Everyone
has the right to study and teach, express, and disseminate science and the
arts, and to carry out research in these fields freely.”
43.
Article 64 of the Constitution, titled “Protection of arts
and artists”, reads as follows:
“The State
shall protect artistic activities and artists. The State shall take the
necessary measures to protect, promote and support works of art and artists,
and encourage the spread of appreciation for the arts.
44.
The Constitutional Court is not bound by the legal qualification
of the facts by the applicant and it makes such assessment itself (see Tahir
Canan, no. 2012/969, 18 September 2013, § 16). The Court has considered that the applicant’s complaints
concerning the alleged violations of Articles 2, 26, 64 and 138 of the Constitution
should be examined within the scope of the freedom of expression (Article 26)
in the light of the freedom of science and arts (Article 27) and the protection
of arts and artists (Article 64).
Burhan ÜSTÜN and Kadir ÖZKAYA expressed
dissenting opinions in this respect, indicating that the application should
have been examined within the scope of the right to a fair trial.
1.
Admissibility
45.
In its observations, the Ministry argued that the fact that the
applicant brought an action before an administrative court to challenge the
lawfulness of the Municipal Council’s decision to demolish the statue in
question did not mean that he had exhausted all available remedies. According
to the Ministry, where there is an interference with a work of art, the author
(eser sahibi) will be entitled to bring an action pursuant to Law no.
5846 before civil courts for lifting of encroachment (tecavüzün kaldırılması),
cessation of intervention (müdahalenin meni) and compensation of
damages. In the Ministry’s view, Law no. 5846 is a special law that regulates
intellectual and artistic works. In that scope, this Law governs the
determination and protection of material and non-material rights over the
products of authors who create the intellectual and artistic works and artists
who perform or interpret such works. It also regulates the conditions of use of
these products and stipulates sanctions against their use in contravention of
the prescribed principles and procedures. Therefore, where there is an alleged
attack on the rights of the persons who create a work (of art or intellect),
the persons concerned should initially pursue the legal remedies envisaged by
this Law. Thus, the Ministry asserted that the applicant lodged an individual
application with the Court without exhausting the remedies provided for in Law
no. 5846.
46.
According to the established case-law of the Court, in cases
where there is more than one effective remedy that can be resorted to in
respect of an alleged violation, the applicant, as a rule, cannot be expected
to exhaust all legal remedies serving the same purpose (see S.S.A., no.
2013/2355, 7 November 2013, § 30. See also, for similar ECtHR judgments, Kozacıoğlu
v. Turkey, no. 2334/03, 19 February 2009, § 40; and Jasinskis v. Latvia,
no. 45744/08, 21 December 2010, §§ 50, 53-54). In
deciding whether the available remedies have been exhausted, the Court has
regard to the goal which the applicant wishes to achieve. In the case at hand,
the applicant aims to prevent the demolition of the statue he had made.
Although it was also possible for the applicant to achieve this goal through
the other remedies mentioned in the observations of the Ministry of Justice, it
was for the applicant to choose the legal remedy that was best suited to his
case. For this reason, the fact that the applicant has exhausted one legal
remedy but not another remedy which would have served the same goal does not
mean that he has failed to exhaust the available remedies. Therefore, the Court
has concluded that the applicant has exhausted the available legal remedies.
47.
It is the Ministry’s view that the applicant should have mainly
brought an action before an administrative court against the decision dated 6
January 2011 of the Superior Conservation Board (Koruma Yüksek Kurulu)
but he has not availed himself of this remedy, thereby failing to exhaust the
available remedies. The Ministry indicates that the decision of the Kars
Municipality was merely an implementation of the decision of the Superior
Conservation Board and that the applicant should have actually brought an
action against the decision of the Superior Conservation Board. It is not for
the Court to deliberate upon what was the character, from an administrative law
standpoint, of the Kars Municipality’s decision to remove the statue or whether
it could be litigated under an administrative action. It falls within the
discretion and jurisdiction of the inferior courts to rule on this matter of
procedural nature within the framework of administrative justice. In the present
case, when the applicant brought an action against the decision of the Kars
Municipality, the first-instance court declared that the administrative act
could be litigated under an administrative action. Having examined the merits
of the case, it eventually dismissed the action on merits. This judgment was
then upheld by the Supreme Administrative Court. Since the inferior courts did
not dismiss the applicant’s case by finding the Kars Municipality’s decision
simply executory and non-actionable, it would be incompatible with the purpose
of the individual application for the Court to examine, of its own motion, a
matter that is to be addressed by the administrative court during the first
instance of examination.
48.
For the reasons explained above, the alleged violation of the
freedom of expression must be declared admissible for not being manifestly
ill-founded and there being no other grounds for its inadmissibility.
Burhan ÜSTÜN and Kadir ÖZKAYA expressed
dissenting opinions in this respect, indicating that the application should
have been declared inadmissible in so far as relevant to the freedom of
expression due to non-exhaustion of legal remedies.
2.
Merits
a.
Existence of an Interference
49.
According to Article 1/B § 1 (b) and Article 8 of the Law no.
5846, author (eser sahibi) is the person who creates the work. Being a
sculptor, the applicant erected the monumental statue in question at the site
designated by the Municipality on the basis of the contract he had signed with
the Kars Municipality. Thus, there is no doubt as to the fact that the
applicant is the author of the work. Moreover, as a principle, it is out of
question for someone other than the creator of the work to have authorship over
it. The link between the work and its author is a natural link. This
natural relationship arises with the creation of the work and, as a rule,
cannot be transferred to third parties.
50.
The applicant enjoys material (economic) and non-material
(moral) rights over the work of art, which originate from and are protected
under the aforementioned Law, particularly Articles 13, 14, 15, 16 and 17
thereof. The author may accord to other persons certain economic rights and
interests over his work. Even if all of such rights were transferred, the
relationship between the work and the person who created it would not be over.
Persons who, despite not being the author, are authorised to use certain rights
over the work on the basis of a contract they have executed with the author are
named by the legislature as “the owner of the original” (aslın sahibi)
or “the economic rightholder” (mali hak sahibi), whereas these persons
are referred to as “rightholder” (hak sahibi) in the doctrine.
51.
Moral right (manevi hak) is a legal term that is used to
represent the non-material aspect of a work and the personal relationship of
its creator with the work. The principal purpose of the moral right is the
protection of the work from third parties. Since a work of art is an expression
of the personality of its creator, the author enjoys an absolute right over his
work. Even in cases where the work has been left to the discretion of third
parties, the moral rights are such rights that may be enjoyed by its author for
the rest of his life.
52.
In the present case, the Kars Municipality, being a rightholder
in respect of the work of art in question, commissioned the applicant to build
the statue in return for a certain amount of money, which it paid to the
applicant in full. Nevertheless, the applicant is the author of the work and,
pursuant to Article 27 of the Law no. 5846, the applicant’s rights over the
work shall last for his lifetime plus 70 years after his death.
53.
In conclusion, the work of art, namely the statue whose author
is the applicant, was demolished as a result of a set of decisions taken by the
organs wielding the public authority. Under these circumstances, there has been
an inference with the applicant’s freedom of expression.
b.
Whether the Interference
Amounted to a Violation
54.
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. Article 13 of the Constitution reads, in so far as relevant, 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.”
55.
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 in compliance with the requirements of the democratic order
of the society and the principle of proportionality.
i.
Whether the Interference
was Prescribed by Law
56.
The Court has concluded that Articles 9 and 13 of the Law no.
2863 satisfied the requirement of restriction by law.
ii.
Whether the Interference
Pursued a Legitimate Aim
57.
The Court has concluded that the decision to demolish the statue
was part of a series of measures towards the maintenance of public order and
that it pursued a legitimate aim.
iii.
Whether the Interference
Complied with Requirements of the Democratic Order of the Society and the
Principle of Proportionality
(1)
General Principles
(a)
Concept
58.
For an interference with fundamental rights and freedoms to be
in compliance with the requirements of the democratic order of the society, it
needs to meet a pressing social need and be proportionate (Bekir Coşkun [Plenary],
no. 2014/12151, 4 June 2015, §§ 53-55; Mehmet Ali Aydın [Plenary], no.
2013/9343, 4 June 2015, §§ 70-72; and the Court’s judgment no. E.2007/4,
K.2007/81, 18 October 2007).
(b)
Freedom of Artistic
Expression and its Limits
59.
The freedom of artistic expression, a specific branch of the
freedom of expression, guarantees that an artist can conduct his work freely or
disseminate works of art and that this freedom is not to be interfered with by
the State or any other party. Cultural rights, in connection with the present
application, guarantee that the artist or works of art are subsidised by the
State, and they safeguard the right of the persons who wish to access the works
of art to have this access. Thus, the State is under negative and positive
obligations vis-à-vis the freedom of artistic expression.
60.
The Court has not found it necessary to hold an evaluation as to
whether the statue erected by the applicant qualifies as a work of art. Indeed,
the bodies wielding the public power has not raised any objections to the
artistic quality of the impugned statue. Therefore, the matter before the Court
rather concerns whether there has been a breach of the freedom of expression
enshrined in Article 26 of the Constitution due to the demolition of the statue
in question, which was built by the applicant as per his contract with the Kars
Municipality but was subsequently demolished as a result of a set of disputes
among the Treasury, conservation boards and the municipality, as well as
changing legal situations.
61.
Article 26 § 1 of the Constitution does not envisage a
limitation on the freedom of expression in regard to the content. The freedom
of expression covers any kind of expression such as imparting political,
artistic, academic or commercial thoughts and opinions (see Ergün Poyraz (2)
[Plenary], no. 2013/8503, 27 October 2015, § 37; and Önder Balıkçı,
no. 2014/6009, 15 February 2017, § 40).
62.
Seeing the work concerned in the instant case is a statue, it
should be recalled that Articles 26 and 27 of the Constitution offer protection
not only for the content of the opinions and information that have been
expressed, but also the form in which they have been expressed (see, mutatis
mutandis, Fatih Taş [Plenary], no. 2013/1461, 12 November 2014, § 105).
63.
In fact, as stated in the 2013 report submitted to the United
Nations, entitled “The Right to Freedom of Artistic Expression and Creativity”,
all disciplines of art equally enjoy the protection of the freedom of
expression. The report addressed “forms of expression that carry an
aesthetic and/or symbolic dimension, using different media including, but not
limited to, painting and drawing, music, songs and dances, poetry and
literature, theatre and circus, photography, cinema and video, architecture and
sculpture, performances and public art interventions, etc., irrespective of
whether their content is sacred or profane, political or apolitical, or whether
it addresses social issues or not”. The report continued “artistic
activity relies on a large number of actors not reducible to the artist per se,
encompassing all those engaged in and contributing to the creation, production,
distribution and dissemination of artistic expressions and creations”.
64.
Artistic works usually make reference to multiple meanings;
thus, it may not be easy to determine the message they propound. Moreover, the
interpretation of artistic expression may vary according to each person.
Therefore, it is possible for artistic expression to differ from other
categories of the freedom of expression. Also, artistic expression can often be
more “provocative” or “disturbing” than the said types of expression.
65.
The Court drew attention in its previous judgments to the fact
that segregating any expressed and disseminated thought as “valuable-valueless”
or “useful-useless” for the society on the basis of its content would involve
subjective elements; thus, it would create a risk of arbitrary limitations on
the freedom in question. It should be borne in mind that the freedom of
expression also encompasses, regardless of the subjective evaluations of
individuals, the freedom to express and disseminate thoughts that may be
regarded as “valueless”, “useless”, “provocative” or “disturbing” by others
(see, for similar assessments, Ali Gürbüz and Hasan Bayar, no. 2013/568,
24 June 2015, § 42; and Önder Balıkçı, § 40).
66.
On the other hand, Articles 26 and 27 of the Constitution do not
guarantee an unlimited freedom of expression. The freedom of expression is
subject to certain exceptions named under Article 26 § 2 of the Constitution.
The exceptions in question must be convincingly established in every individual
case.
67.
Apart from the above, it should be recalled that Article 64 of
the Constitution on the “Protection of arts and artists”, which provides
“The State shall take the necessary measures to protect, promote and support
works of art and artists, and encourage the spread of appreciation for the arts”,
holds the State responsible for taking all measures necessary to protect the
arts and the artists. In other words, it is the State’s obligation to not only
refrain from violating human rights but also protect individuals from
violations by others. This also applies to the freedom of artistic expression.
68.
The freedom of science and arts is specifically safeguarded by
Article 27 of the Constitution. In this connection, Article 26 and, especially,
Article 27 of the Constitution include the freedom of artistic expression
within the scope of obtaining information and ideas and imparting thoughts.
These constitutional guarantees offer the possibility to take part in the
expression, dissemination and exchange of any cultural, political or social
knowledge or idea. Persons who create, publish or disseminate works of art such
as the impugned statue in the present case, have a considerable input in the
dissemination of ideas and such artistic works are of great importance for a
democratic society. For this reason, the State has to act more sensibly
regarding the obligation of not interfering unnecessarily with the freedom of
expression exercised by the persons who have created a work of art (see, among
other authorities, Fatih Taş, § 104).
(c)
Principle of Holistic
Approach in Cases Concerning the Freedom of Expression
69.
Judicial bodies must examine expressions without taking them out
of context in their assessments with regard to the freedom of expression.
Acting to the contrary might lead to reaching erroneous results in the
application of the principles set out in Articles 13 and 26 of the Constitution
and in terms of making an acceptable assessment of the findings established.
Especially when artistic expressions are at issue, the assessments to be made
by judicial authorities must -as a requirement of this principle of holistic
approach- take account of certain factors: the characteristics of the branch of
art or the work; the context in which the work is expressed; the identity of
the author; the purpose and the time of creation; the identities and the sense
of aesthetics of the people it addresses/appeals to; and the potential effects
of the work, all considered as a whole.
70.
In this context, the Court must examine the interference giving
rise to the present application within the entirety of the events and determine
whether the interference with the freedom of expression was “proportionate” and
whether the grounds relied on by the inferior courts to justify the
interference were convincing - in other words, “relevant and sufficient” (see Nilgün
Halloran, no. 2012/1184, 16 July 2014, § 39; Bekir Coşkun, §§ 24 and
58; Tansel Çölaşan, § 52). In doing so, the Court must become convinced
that the bodies exercising public power as well as the inferior courts applied
the standards compatible with Article 26 of the Constitution and the principles
set forth by the Court and that they also rendered their decisions through an
acceptable appreciation of the material facts. Therefore, the Court will have
regard to the assessments made by the inferior courts and the grounds
established.
(2)
Application of Principles
to the Present Case
71.
The statue in question was demolished after it was designated by
the Conservation Board as an immovable cultural asset in need of conservation
because the Treasury-owned immovable property on which the statue was erected
was home to machine gun emplacements and vaulted structures made during the
Second World War. On the other hand, the reasons for the decisions given by the
Conservation Boards and the inferior courts over the course of the process
leading to the demolition of the statue was not based on a disagreement over
property between public institutions.
72.
In the present case, the applicant signed a contract with the
Kars Municipality, a public legal entity, by means of the Council decision
dated 7 November 2005 whereas the Regional Conservation Board, by its decision
dated 2 November 2006, registered certain immovable properties in the parcel
where the statue was going to be built. By its decision dated 8 February 2007,
the Regional Conservation Board approved the Municipality’s environmental
landscaping project and gave permission for construction of the statue.
Nonetheless, on 10 September 2008, the Regional Conservation Board, in
contradiction with its previous decisions, decided that, due to “new findings”
discovered in the area of the statue, there could be no execution of the plan
within this area and, therefore, the existing structures had to be demolished.
On the basis of the Regional Conservation Board’s decisions, the Kars
Municipality decided on 1 February 2011 to demolish the statue.
73.
As it may be understood from the above, the debates over the
construction, legal status and demolition of the statue in question initially
took place between public institutions. In other words, there has been an
interference with an individual’s fundamental right under the Constitution as a
result of a disagreement between public institutions. Article 123 § 1 of the
Constitution, which reads “The administration is a whole with its formation
and functions...”, provides for the principle of integrity of the
administration, meaning that the bodies that make up the administration work as
one whole in harmony. Because of the above-mentioned principle, the
institutions which constitute the administration may not rely on disagreements
between one another as grounds for interfering with the rights and freedoms of
individuals. To put differently, the failure of the organs and institutions
that make up the State to function in harmony cannot be raised as a
justification for any interference with individual rights and freedoms.
74.
It is true that the legal status of the immovable properties
owned by different public institutions and organisations may vary. When read
together with the foregoing explanations as to the integral structure of the
administration, the Constitutional Court finds it neither
necessary nor useful, in order for an examination to be held on the complaint
giving rise to the application, to address the disagreement over property
between the public institutions which make up the administration and wield the
public power. For this reason, the application will be examined from the
standpoint of whether the demolition of the statue in question, due to the
designation of the immovable property it occupied as a cultural asset in need
of conservation, has satisfied a social need and whether it was the last resort
that could possibly be used.
75.
The statue at issue in the present application, called the “Statue
of Humanity”, was reported to have been built “as a gesture of goodwill”
at a period of time when messages were being expressed in favour of
establishing warm relations between Turkey and Armenia. The Municipal Council’s
decision indicated that the statue was an expression of the wish for no more
wars in our country and the world; further, the contract signed with the
applicant described that the main purpose of the statue was to convey a call
for peace to the people living in the region around Kars. When taken together
with the public debates that took place over the course of the construction and
demolition processes of the statue, the latter can be regarded as a work of art
that carried a heavy political weight.
76.
Depending on the type of expression, certain expressions are
afforded more protection than others. The highest degree of legal protection is
to be afforded to political expressions (see Fatih Taş, § 98; and Ergün
Poyraz (2), § 58). The freedom of political debate is the basic
principle of all democratic systems and governments are under an obligation to
not only tolerate harsh criticisms but also ensure that the restrictive
measures they put in place do not create a chilling effect on the exercise of
the freedom of expression (see Bekir Coşkun, §§ 64, 67-69; and Ergün
Poyraz (2), §§ 68-70, 78-79). In cases where artistic expression is
characterised as political expression, the extent of the protection afforded
thereto should be wider. Therefore, the pieces of artistic expression involving
political content are expected to have stronger protection compared to other
types of expression.
77.
In the light of these assessments, the focus should now be
placed upon the question of whether the existence of certain cultural assets,
which were registered and deemed to be in need of conservation, inside the same
immovable property as the statue could be accepted as a relevant and sufficient
reason for the demolition of the statue.
78.
It had been claimed, prior to the beginning of construction of
the statue, that there were cultural assets in need of conservation on the
immovable property at issue. By its decision dated 2 November 2006, the
Regional Conservation Board indicated that there were machine gun emplacements
made during the Second World War in the northern part of the hill, which was
located in the same parcel of land as the statue, and vaulted defensive
structures in the western part of the hill; thus, the Board registered certain
immovables on the hill as cultural assets on the basis of their cultural
heritage characteristics.
79.
The decision dated 14 November 2008 of the Regional Conservation
Board indicated that the structures in question were described as assets from
the Early Republic Era. The Mayor, on the other hand, stated that there were
certain military structures dating back to the 18th century in the
parcel in question. The Court has noted that, during the more-than-two-year
period elapsed between the Regional Conservation Board’s decision of 10
September 2008 and the Kars Municipality’s decision of 1 February 2011 on the
demolition of the statue, no effort was made to produce a complete
identification, classification and inventory of the structures deemed as
cultural assets or to ascertain their number and the space they occupy.
Secondly, it has not been possible to determine whether the registration made
via the decision dated 2 November 2006 of the Regional Conservation Board
covered the whole parcel or a portion of it, i.e. whether the area where the
pedestal of the statue had been placed was one of the registered lands.
80.
Although the Regional Conservation Board had decided on 2
November 2006 that the theme of the statue in question was compatible with the
city and the castle from a landscaping standpoint and subsequently, on 8
February 2007, approved the Municipality’s environmental landscaping project,
the Regional Conservation Board’s decision of 10 September 2008 for demolition
of the statue did not provide any explanation as to what were the “new
findings” that it relied on in this decision. There were highly contradicting
statements made by the authorities as to what were the cultural assets in need
of protection that had been discovered in the immovable property at issue. Even
assuming that there actually were cultural assets in need of protection in that
parcel of land, no explanation was provided as to how the statue being
constructed at the time had caused damage to those assets.
81.
By a decision dated 6 January 2011, the Superior Conservation
Board annulled all of the earlier decisions of the regional conservation board.
This decision indicated that after the property dispute regarding the parcel
will have been resolved, the projects submitted by the Municipality would need
to be evaluated by the Regional Conservation Board. Furthermore, it reminded
that it was within the Municipality’s discretion, within the framework of the
Law no. 3194, to decide on the fate of the statue. The Kars Municipal Council,
relying on the said decision of the Superior Conservation Board, decided on 1
February 2011 to remove the statue. Besides, in its ruling of 21 April 2011,
the first-instance court concluded that the aforementioned decision of the
Superior Conservation Board was the reason for the decision to demolish the
statue.
82.
Considering these facts as a whole, the Court has observed that
the bodies wielding the public power requested, permitted and paid the
applicant to make the work of art without initially having resolved the
property dispute over the immovable property in question or having fully
identified the cultural assets on the immovable property; however, they have
failed to protect the statue after completion of the artistic creation. As it
may be understood from the decision dated 2 November 2006 of the Regional
Conservation Board, the fact that certain immovable properties in a parcel of
land are registered as cultural assets does not mean that no projects may be
implemented on that parcel. Indeed, the Regional Conservation Board permitted
the construction of the statue at issue despite the existence of registered
cultural assets in the parcel; and the Ministry of Interior found “no
contravention of Board decisions” in the monument and landscape
construction being implemented within the scope of the project which had been
submitted by the Municipality and approved by the Regional Conservation Board
via its decision dated 8 February 2007.
83.
It would be acceptable as a reasoning to deny permission for the
statue prior to the beginning of its construction on the basis of the existence
of cultural assets in need of conservation in the said region. In fact, the
conservation of cultural assets is a duty placed upon the State by Article 63
of the Constitution. Nonetheless, as is the case in the present application,
once the process of creation of a work of art starts or after it has been
created, the work goes under the protection of the freedom of artistic
expression. Thus, the bodies wielding the public power are under an obligation,
in their acts and actions, to refrain from restricting the freedom of
expression arbitrarily and to exert the utmost effort within the scope of their
positive obligations to preserve a work of art.
84.
Apart from the above, the Ministry’s observations suggest that
there were competing interests in the instant case, namely between the
applicant’s freedom of expression and the Treasury’s right to property. However,
neither the administrative decisions nor the court rulings were able to
definitively establish who owned the immovable property. Besides, in view of
the report dated 10 June 2010 which was drawn up by experts upon request of the
Superior Conservation Board, the uncertainty about the owner of the parcel of
land had not yet been resolved.
85.
Even if it were to be assumed that the immovable property in
question was owned by the Treasury, both the decisions of administrative
authorities and the court rulings failed to explain why a property disagreement
between the Treasury and another public institution, the Municipality, was the
reason for an interference with the rights of the author of a work of art; or
why the public authorities’ right to property superseded the author’s freedoms
of expression (Article 26) and the arts (Article 27), as well as the
Constitution’s imperative provision on the protection of arts and artists
(Article 64). Lastly, in this connection, no effort was made to enquire
whether it would have been possible to resolve the issue by means of having the
value of the portion of the immovable property occupied by the statue’s
pedestal determined and securing its purchase by the Kars Municipality, which
had commissioned the statue, pursuant to the relative provisions of the Turkish
Civil Code.
86.
Since the issue concerned in the present case is the demolition
of the statue, it should have been assessed, at the minimum, how the statue had
caused damage to the cultural assets found on the immovable property and if it
those cultural assets could have been preserved without demolishing the statue.
It could have been enquired whether it would have been possible to move the
work of art to another location without destroying it; negotiations might have been
conducted with the applicant -the author of the work of art- in order to reach
a mutually agreeable solution; or an attempt might have been made to conciliate
between the demands of the applicant and those of the administration. The
failure to deliberate on these points either in the administrative decisions or
in the court rulings delivered during the process leading to the demolition of
the statue demonstrates that the State has failed to fulfil its positive
obligations with regard to the protection of the work of art.
87.
The questions of what were the cultural assets located on the
immovable property at issue and whether the whole or a part of the immovable
property was registered as a cultural asset in need of conservation have not
been prominently answered. No examination has been conducted, either, to
establish if the statue had caused any damage at all to the cultural assets
located therein. Thus, it has not been proven that the demolition of the statue
satisfied a social need. Furthermore, no enquiry was made to ascertain whether
the cultural assets could have been preserved without fully demolishing the
statue; therefore, the demolition has not been proven to be the last resort
available.
88.
The bodies wielding the public power seem to have ignored the Constitution’s
provisions on the freedom of artistic expression throughout the process from
the construction until the demolition of the statue. In the present case, it
has not been proven that the bodies wielding the public power took the measures
necessary for the protection of a work of art. Moreover, despite the fact that
the statue in question had to be afforded a higher level of protection than
other types of expression, it has not been proven that its demolition was
necessary in a democratic society. For this reason, it has been concluded that
the decisions of the administrative authorities and the courts did not provide
relevant and sufficient reasons.
89.
In conclusion, in the case giving rise to the present
application, the bodies wielding the public power have failed to display the
sensitivity required for the protection of a work of art, which had become a
part of humanity’s intellectual heritage that was open to everyone’s access as
it had become public, and by extension the constitutional right to freedom of
artistic expression, which carries a great significance for a democratic
society.
90.
Consequently, the Constitutional
Court has found a violation of the freedom of expression protected under
Article 26 of the Constitution.
Serdar ÖZGÜLDÜR, Burhan ÜSTÜN, Muammer TOPAL,
Kadir ÖZKAYA, Recai AKYEL and Yıldız SEFERİNOĞLU expressed dissenting opinions
in this respect.
C. Application of Article 50 of Code no. 6216
91.
Article 50 §§ 1 and 2 of the Code no. 6216 on the Establishment
and Rules of Procedures of the Constitutional Court, dated 30 March 2011, in so
far as relevant, 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.”
92.
The applicant claimed 100,000 Turkish liras (TRY) as
non-pecuniary compensation.
93.
The Court has found a violation of the applicant’s freedom of
expression.
94.
As regards the non-pecuniary damages sustained by the applicant
due to the violation of his freedom of expression, which cannot be redressed by
a mere finding of a violation, the Court awards TRY 20,000 (net) in favour of
the applicant as non-pecuniary compensation.
95.
The total court expense of TRY 2,681.10 including the court fee
of TRY 206.10 and the counsel fee of TRY 2.475, which is calculated over the
documents in the case file, must be reimbursed to the applicant.
VI.
JUDGMENT
For these reasons, the Constitutional Court
held on 11 July 2019 that,
A.
With the dissenting opinions of Burhan ÜSTÜN and Kadir ÖZKAYA
and BY A MAJORITY, the alleged violation of the freedom of expression be
DECLARED ADMISSIBLE;
B.
With the dissenting opinions of Serdar ÖZGÜLDÜR, Burhan ÜSTÜN,
Muammer TOPAL, Kadir ÖZKAYA, Recai AKYEL and Yıldız SEFERİNOĞLU and BY A
MAJORITY, the freedom of expression safeguarded by Article 26 of the
Constitution was VIOLATED;
C.
A net amount of TRY 20,000 be PAID to the applicant in respect
of non-pecuniary damage, and other compensation claims be REJECTED;
D.
The total court expense of TRY 2,681.10 including the court fee
of TRY 206.10 and counsel fee of TRY 2,475 be REIMBURSED TO THE APPLICANT;
E.
The payment be made within four months as from the date when the
applicant applies to the Ministry of Treasury and Finance following the
notification of the judgment; in case of any default in payment, statutory
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.
DISSENTING OPINIONS OF JUSTICES SERDAR ÖZGÜLDÜR AND MUAMMER
TOPAL
1.
The statue made by the applicant was constructed on an immovable
property (owned by the Treasury) which was not under the ownership of or
allocated to the Municipality but no permission was obtained from the officials
of the Treasury (National Property: Milli Emlâk).
2.
Although, the Conservation Board initially, being unaware of the
fact that the Municipality concerned was not the owner of the immovable
property, approved the Municipality’s environmental landscaping project and
allowed it to build the statue, a subsequent detailed inspection on the
immovable property revealed that the existing structures (machine gun
emplacements and a vaulted structure) on the land were in fact cultural assets
in need of conservation; therefore, the same Conservation Board consequently decided
that no project implementation would be allowed on this area, the existing
structures had to be demolished, and that legal action would be taken against
anyone who conducts or commissions a project implementation in contravention of
this decision. Likewise, the Superior Conservation Board also held that the
construction and physical intervention (statue construction) in the parcel of
land performed without the permission of the parcel’s owner had to be assessed
within the scope of the Zoning Act (Law no. 3194) (illegal construction) and be
resolved by the Municipality concerned. Following this decision and a tender
procedure held in accordance with the relevant Municipal Council’s decision,
the statue in question was cut into pieces and removed from the location and
placed inside the Municipality warehouse. It is out of question for a violation
of a right worthy of protection to happen, either in respect of the entity who
commissioned or the applicant who built it, because of a statue which was built
in contravention of the legislation on an immovable property that was
registered in the said manner as a cultural asset in need of conservation and
placed under an absolute prohibition of construction.
3.
A local administration unit attempted of its own motion to build
a statue without consulting any State units concerning a topic that is directly
related to the State’s foreign policy, albeit within the scope of the freedoms
of expression and art. This activity was carried out, as explained above, in a
manner that did not comply with the legislation, which resulted in the removal
of the statue. The legal action brought against this act of removal was
dismissed by the competent tribunals on the basis of relevant and sufficient
reasons. As the sculptor who made the statue, the applicant received the
royalty payment agreed under the contract for his labour and the work. In this
sense, it is not sufficient to examine the matter simply from the standpoint of
the freedom of expression because the examination should be held as a whole
without taking it out of context. The principle of autonomy of local
administrations cannot be interpreted as meaning that these units might act as
they wish in such sensitive and national topics. The author of a work which
came into being as a result of a production (statue construction) that was
carried out in contravention of the legislation and has been found to have been
against the law from the beginning cannot be considered separately from this
discretion.
4.
For these reasons, concluding that there are no grounds for
finding a violation of the applicant’s freedom of expression due to the removal
of a statue after it had been legally established to have been constructed in
contravention of the law from the very beginning, we disagree with the
majority’s conclusion to the contrary as well as the decision to award
non-pecuniary compensation to the applicant.
DISSENTING OPINIONS OF JUSTICES BURHAN ÜSTÜN AND KADİR
ÖZKAYA
In the application lodged upon the dismissal
of the action for annulment of the decision to remove the monument-statue,
which the Kars Municipality had had the applicant build, our Court has found by
a majority a violation of the applicant’s freedom of expression. For the
reasons to be explained below, we disagree with the majority’s view.
On 7 November 2005, by its decision no. 153, the Kars Municipal Council decided to build a
“Statue of Humanity” with environmental landscaping as well as a park of
humanity on a Treasury-owned immovable property (hill) of 9090 square metres in
surface area located at block. no. 790 parcel no. 1 in Üçler vicinity of Sukapı
neighbourhood, Central district, Kars province. The immovable property was
under the ownership of the Treasury on the date when this decision was taken
and there is no information in the case file to suggest that it was allocated,
transferred, or sold to the Kars Municipality, even after that date.
Following the tender procedure held on the
basis of the Council decision, a contract was signed, in an attempt by the Kars
Municipality to offer an arts and culture service, between the then-Mayor of
Kars in his capacity as the “Employer” on behalf of the Kars Municipality, on
the one side, and the applicant Mehmet AKSOY in his capacity as the “Contractor
- Sculptor”, on the other, on 4 July 2006 (or 5 June 2006 according to the
Ministry’s observations) for the construction of a monument-statue, which would
be 30 metres in height from the surface including the pedestal, on a piece of
flat area situated on top of the hill across the Kars Castle and overlooking
the Kars River and Kaleiçi neighbourhood and also reported to have a panoramic
view of the whole city of Kars.
After describing the parties to the contract,
its subject, contents and purpose, the parties’ obligations, financial
conditions, the duration of the job and the sanctions to apply in case of
termination of contract, the contract authorised the courts of Kars as
competent to resolve any disputes arising from the contract, while reserving
the sculptor’s copyrights as well as his other rights under the Law on
Intellectual and Artistic Works. According to the contract, the monument-statue
would be completed within 18 months following the first payment. The Ministry’s
observations indicate that the first payment was made on 22 August 2006.
Although it cannot be understood from the case file when it had
started, the production of the contracted monument-statue construction work had
apparently started before the property dispute over the area in question was
resolved or the procedure under the legislation on “Conservation of Cultural
and Natural Assets” was completed. Relying on this ground, upon the petition
letter dated 19 September 2006 of the provincial branch office of a political
party and the letter no. 2149 dated 6 October 2006 of the Kars Provincial
Directorate of Culture and Tourism, the Erzurum Regional Board for Conservation
of Cultural and Natural Assets issued the decision no. 421 dated 2 November
2006, in which it decided that “Located in block no. 790 parcel no. 1 of
the Central district of Kars province, the machine gun emplacements made during
the Second World War in the northern part of the hill and the vaulted structure
in the western part of the hill near the bottom, on account of their cultural
asset quality, be registered as immovable cultural assets in need of
conservation within the scope of the Law no. 3386 and the Law no. 2863 as amended
by the Law no. 5226; the execution of the project implementation being
conducted on the highest point of the hill be stayed; and any execution of
project implementation in the area be subject to the prior permission of the
Conservation Board”. The Kars Municipality was informed of the situation.
Following the decision in question, without a
resolution having been reached in terms of the property dispute over the
immovable property, submitted a request via the letter no. 2078 dated 11
December 2006 to the Erzurum Regional Board for Conservation of Cultural
and Natural Assets for building a monument on the said immovable property (i.e.
for the production which had already started without permission on a piece of
land that was owned by another party).
The Erzurum Regional Board for Conservation of Cultural and
Natural Assets, by its decision no. 501 dated 23 December 2006, decided
that: “Located at block no. 790 parcel no. 1 of Sukapı neighbourhood,
Central district, Kars province, the immovable property owned by the Kars
Municipality is not within any protected sites. By its letter no. 2078
dated 11 December 2006 the Kars Municipality submitted its request for building
a monument on the parcel containing the machine gun emplacements that were
registered by (our) Board’s decision no. 421 dated 2 November 2006. … in
conclusion, as regards the request for building a monument on the immovable
property located at block no. 790 parcel no. 1 of Sukapı neighbourhood, Central
district, Kars province, the theme of the monument is considered to be
compatible with the city and the castle from a landscaping standpoint; thus,
the implementation project containing the finalised recommendations on
environmental landscaping other than the location and pedestal of the monument
(e.g. in regard to illumination, groundwork, terracing, general spaces,
historical texture etc.) should be sent to (our) board”. In the
decision, the approved project was seemingly understood to be planned for
construction on an immovable property owned by the Kars Municipality. However,
the property was under the ownership of the Treasury.
After the above-mentioned decision, the environmental
landscaping project prepared and submitted by the Municipality via its letter
no. 178 dated 6 February 2007 was subsequently approved by way of
rectification by the Conservation Board by its decision no. 523 dated 8
February 2007. Although the immovable property on which the approved
project was going to be implemented was owned by the Treasury, this decision
was also taken on the basis of the [mistaken] understanding that the property
belonged to the Kars Municipality.
In the meantime, the Kars Municipality applied
on 24 April 2008 to the Kars Directorate of National Property to request
the allocation or sale of the immovable property, where the statue construction
was located, to the Municipality. On 29 April 2008 the Directorate of
National Property requested the opinion of the Kars Provincial Directorate of
Culture and Tourism on this request. Upon this request, the Directorate’s
experts conducted another inspection on the immovable property.
As a result, the Regional Conservation Board issued two separate
decisions, nos. 1021 and 1022, on 10 September 2008. In the decision no.
1021, it held as regards the immovable property at issue that “...in the
light of the new findings unearthed during the excavation works on the
immovable property that is owned by the Treasury, it must remain registered
under the Law no. 2863; … no implementation [of projects] may be conducted
within this area and the existing structures must be demolished; …”;
whereas in the decision no. 1022, it decided, by referring to the decision no.
1021, that the immovable property on which the statue in question was built
might not be sold or allocated pursuant to the Law no. 2863 on Conservation of
Cultural and Natural Assets.
Though it is unclear from the contents of the
case-file upon which developments they were taken, the Regional Conservation
Board issued two more decisions on 14 November 2008 and 25 September 2009. In
the decision dated 14 November 2008, it confirmed that the decision no. 1021
dated 10 September 2008 was still valid. On the other hand, it the decision
dated 25 September 2009, it confirmed the validity of both the decisions nos.
1021 and 1022 dated 10 September 2008 and the decision no. 1110 dated 14 November
2008 and it decided that an investigation should be launched against those who
conducted or commissioned the project implementation in contravention of these
decisions.
In the meantime the Directorate of National
Property sent a letter on 2 February 2010 to the Kars Municipality, in which,
after referring to its letter dated 2 June 2005 concerning the prohibition of
taking any steps on the Treasury-owned immovable property, it recalled that the
property could not be allocated or sold according to the decision no. 1022
dated 10 September 2008 of the Conservation Board and instructed the
Municipality to return the immovable property in an empty state after
demolishing the structures located thereat pursuant to Article 18 of the Law
no. 775 on Squatter Houses.
In order to evaluate the situation concerning
the immovable property in question and the “Statue of Humanity” being built on
it, the Superior Board for Conservation of Cultural and Natural Assets of the
Ministry of Culture and Tourism held a meeting on 19 January 2010. At the end
of this meeting, it decided to have a panel inspect the situation surrounding
the “Statue of Humanity” on site from the very beginning and submit a report on
the matter.
On 6 January 2011 the Superior Board reconvened and adopted the
decision no. 777, by which, after assessing the ownership issue of the
immovable property, it decided, due to the disparity in between, that all
the decisions taken by the Conservation Board be annulled and the construction
and physical intervention -outside the scope of the registration- being
conducted on the parcel without the permission of the parcel’s owner be
assessed under the Zoning Act (Law no. 3194) and resolved by the Municipality
concerned.
Upon this decision of the Superior Board, the
Kars Municipal Council adopted the decision no. 14 dated 1 February 2011.
Through this decision, it decided to remove the monument on the immovable
property by virtue of the Zoning Act (Law no. 3194).
In the action filed by the applicant for
annulment of the said council decision, although initially the first-instance
Administrative Court ordered a stay of execution on 7 March 2011 on the
ground that it was the within the duty and authority of the municipal executive
committee (belediye encümeni), not the municipal council (belediye
meclisi), to issue an act to remove the disputed statue from its place, the
Erzurum Regional Administrative Court subsequently lifted that order and
dismissed the request for a stay of execution on 16 March 2011.
In its decision, the Regional Administrative Court found that
there was no issue of authority in the impugned act and followed that the
impugned act did not qualify as a decision to demolish taken by virtue of
Article 32 of the Zoning Act (Law no. 3194) but instead a decision taken in
order to redesign the environmental landscaping project on the area in question
in a harmony with the historical texture by means of removing the statue of
humanity from there in a bid to implement the decision no. 777 dated 6 January
2011 of the Superior Board for Conservation of Cultural and Natural Assets of
the Ministry of Culture and Tourism, which read “all the decisions taken by
the Conservation Board be annulled and the construction and physical
intervention -outside the scope of the registration- being conducted on the
parcel without the permission of the parcel’s owner be assessed under the
Zoning Act (Law no. 3194) and resolved by the Municipality concerned”.
Moreover, the Regional Administrative Court noted that the decision had been
taken due to the fact that the statue had been built without a licence on a
Treasury-owned immovable property without the Treasury’s approval and in
non-compliance with Law no. 2863. In conclusion, it ruled that there was no
contravention of law or legislation in the impugned act.
After these developments, on 21 April 2011
the Administrative Court dismissed the applicant’s case. In this
dismissal judgment, the Administrative Court concluded that there was no
contravention of law or legislation in the impugned act on the ground that the
impugned decision of the Municipal Council pursued the aim of executing the
decision no. 777 dated 6 January 2011 of the Superior Board for Conservation of
Cultural and Natural Assets of the Ministry of Culture and Tourism and, by
extension, removing the monument-statue in question which had been built on a
parcel of land -fully owned by the Treasury according to the existing title
deed records and found to have the quality of a cultural asset in need of
conservation- without any permission obtained from its owner (Treasury) and in
non-compliance with the Law no. 2863. In sum, the impugned act was actually a revocation
(geri alınma) of the decision no. 153 dated 7 November 2005 (i.e.
the original decision of the Kars Municipal Committee to have a monument-statue
built).
The request for appeal filed against this
judgment was dismissed by the decision no. E.2011/9021, K.2013/161 dated 29
January 2013 of the 14th Chamber of the Supreme Administrative
Court, which, thereby, upheld the judgment of the first-instance administrative
court.
Upon the dismissal of the request for
rectification of this last decision, an individual application was lodged with
our Court.
Stating that works of art are part of the
freedom of expression, the applicant claimed that the “Statue of Humanity” he
had made was a symbol of piece with Armenia; that the decision to demolish a
work of art symbolising the peace and the execution of the demolition had led
to a violation of the freedom of expression enshrined in Article 10 of the
European Convention on Human Rights (“the Convention”); that the State may not
interfere with works of art on the basis of a set of subjective evaluations;
that his work had been built in compliance with the law and with the permission
of competent boards; and that the process that had been witnessed had also
contravened the provisions of Articles 16 and 17 of the Law on Intellectual and
Artistic Works.
In order to lodge an individual application
with the Court, an applicant is required to exhaust all the administrative and
judicial remedies available in respect of the act or action that has allegedly
caused a violation. Since the individual application mechanism is a subsidiary
remedy, what is essential is for the public authorities to respect rights and
freedoms and, in case of a potential violation, secure its resolution through
ordinary administrative and/or judicial avenues. For this reason, the remedy of
individual application may only be pursued in cases where it has not been
possible to eliminate the violation despite the exhaustion of all the ordinary remedies
provided by law (no. 2012/338, 2 July 2013, § 28).
In the instant case, on 7 November 2005 the
Kars Municipality issued an act (no. 153) pursuant to the rules of
administrative law on a matter it considered to be within its sphere of duty and
authority; accordingly, it decided to build a statue called “the Statue of
Humanity” along with environmental landscaping as well as a park of humanity on
an immovable property that was owned by the Treasury.
The relationship between the Kars Municipality
and the applicant was established with a contract for the realisation of the
said decision, which was drafted and signed fully within the framework of
private law. The signing of the contract was then
followed by a set of legal issues over the course of the process. The
contracted monument-statue had been produced before resolution of the issues
arising from the ownership situation of the land it occupied and from the
legislation on the conservation of cultural and natural heritage.
In the process that ensued, on the ground that
the aforementioned legal issues had not yet been resolved and in accordance
with a decision delivered by a Superior Board exercising the duty and authority
it had in the resolution of some of those issues, the Kars Municipality issued
another decision within the framework of its own duty and authority to
dismantle and remove, pursuant to the Law no. 3194, the said monument-statue
(which had been constructed on an immovable property owned by a third party and
caused problems in terms of the legislation on the conservation of cultural and
natural heritage).
This, as indicated in the judgment no.
2011/565 dated 21 April 2011 of the Erzurum 1st Administrative
Court, was an act issued within the framework of the rules of administrative
law with an aim to executing the requirements of the decision no. 777 dated 6
January 2011 of the Superior Board for Conservation of Cultural and Natural
Assets of the Ministry of Culture and Tourism. It was also, in a sense, an
administrative decision to realise a new project by abandoning the earlier
project which had been launched by the Kars Municipal Council via its decision
no. 153 on 7 November 2005 concerning the construction of a “Statue of
Humanity” with environmental landscaping as well as a park of humanity on a
Treasury-owned immovable property (hill) of 9090 square metres in surface area
located at block. no. 790 parcel no. 1 in Üçler vicinity of Sukapı neighbourhood,
Central district, Kars province.
Although this is an act that legally affected
the applicant’s legal position in his capacity as the author of the work, it
cannot be construed as an act of demolition aimed at completely destroying the applicant’s
work. This is an
administrative act regarding the removal of a monument-statue, which had been
built on the basis of another administrative decision, in accordance with the
rules of administrative law.
It should be noted in this context that administrations
may sometimes act as a private law entity and the rules of private law may be
exceptionally applicable to some of their activities, principally they act
within the sphere of the rules of administrative law in relation to the
fulfilment of the duties they are given and execute their duties via
administrative decisions and acts (Ali D. ULUSOY; Yeni Türk İdare Hukuku,
Yetkin Yayınları, Ankara 2019, p. 34).
Administrative acts emerge as the
administrative dispositions in which an administration, through its assigned
and authorised organs, wield the public power in accordance with the rules of
public law with regard to their administrative activities unilaterally and of
their own will, thereby either entitling to a right or putting under an obligation
the party or parties concerned.
The most important difference between
administrative acts, except for administrative agreements/contracts, and acts
of private law is that the former are such acts that take place with the
administration’s unilateral declaration of will, regardless of the will of the
parties concerned and without asking them, and create consequences within the
legal position of the parties concerned outside their will. Although there are
views to the effect that it should not be regarded as an unquestionable and
absolute rule due to administrative agreements/contracts and certain other
exceptions, administrative acts emerge, as a rule, with the unilateral
declaration of will by the administration. On the other hand, apart from
certain exceptional cases in the sphere of private law, it is not possible, as
a rule, to make any changes in the legal position of the adverse party (a
person or a situation) with a unilateral declaration of will by either the
administration or other persons (Ali D. ULUSOY; Yeni Türk İdare Hukuku,
Yetkin Yayınları, Ankara 2019, p. 271).
In an action filed for annulment of an
administrative act, the lawfulness of that act will be assessed by the
tribunals of administrative justice on the basis of whether it was in line with
the law in terms of the following factors (and in this order): authority, form,
reason, subject and aim. The authority factor, in a very general sense, refers
to whether the administrative act has been issued by an authority/organ or
person that is competent (legally authorised) to do so. The form factor is
whether the act has been issued in line with the form and method prescribed for
that act by the relevant legislation. The reason factor concerns the legal and
actual reasons that have led the administration to issue the act in question.
The subject factor refers to the legal effect and consequence which has
been/will be created by the act. The aim factor enquires whether the
administrative act has been issued with the aim of achieving public interest.
It should be particularly noted in this context that, because of its close
relationship with the administration’s discretionary power, the legal and
actual factors that lead the administration to issue the administrative act
must be in line with the law and the interests of the society. These factors
might be explicitly specified by the legislation or, sometimes, be indicated in
a very general manner or not indicated at all. If there is an indication
therein, the tribunals of administrative justice will examine whether these
reasons are present in their review. If there is no indication at all or there
is one that is very general in nature, an examination will be held as to
whether there are valid reasons to justify the act in terms of public interest
and requirements of service (Ali D. ULUSOY; Yeni Türk İdare Hukuku,
Yetkin Yayınları, Ankara 2019, p. 371 et seq.).
According to the rules of administrative law,
the established case-law of the administrative justice and the situation
explained above, due to the nature of things, just as administrations are not
required to ask for the opinion of the owner of an immovable property when they
decide to expropriate it, there is no requirement in the present case, either,
to take into account the will of the applicant, who has the capacity of
“author” within the meaning of the Law on Intellectual and Artistic Works, in
deciding whether or not to remove the monument-statue in question from its
location. Furthermore, the tribunals of administrative justice that conduct the
judicial review on the act concerning the removal of the monument-statue in
question are not required to take into consideration the provisions of the Law
on Intellectual and Artistic Works in this review.
In the instant case, the relationship between
the applicant and the Kars Municipality was established, as indicated above,
not by the decision no. 153 dated 7 November 2005 of the Kars Municipal Council
but in fact by a contract that was signed between the Municipality and the
applicant within the sphere of private law with a view to realising the
aforementioned council decision. Therefore, the rights to which applicant
became entitled to as a result of the execution of the said contract and the
construction of the monument-statue, which may also be associated with the
freedom of expression, are based not on the decision no. 153 dated 7 November
2005 but on the provisions of the Law on Intellectual and Artistic Works as
well as other provisions of private law; they may thus be actionable under the
Law on Intellectual and Artistic Works as well as other provisions of private
law.
Note should be taken in this connection of the
fact that the Law on Intellectual and Artistic Works is a special law that
regulates intellectual and artistic works. In that scope, this Law governs the
determination and protection of material and non-material rights over the
products of authors who create the intellectual and artistic works and artists
who perform or interpret such works. It also regulates the conditions of use of
these products and stipulates sanctions against their use in contravention of
the prescribed principles and procedures (Observations of the Ministry of
Justice on the application).
Therefore, where there is an alleged attack on
the rights of the persons who create a work (of art or intellect), the persons
concerned should initially pursue the legal remedies envisaged by this Law. The
Law on Intellectual and Artistic Works lays down certain protection mechanisms
in favour of the author of a work in case of any interference with works of
art. Authors are entitled to apply for those mechanisms where there is an
interference with their works. Filing actions before civil courts for lifting
of encroachment (tecavüzün ref’i), cessation of intervention (müdahalenin
men’i) and compensation of damages are some of those available legal remedies
(Observations of the Ministry of Justice on the application).
In the application at hand, the outcome which
the applicant intends to achieve is for the statue (which he built on an
immovable property owned by a third party and caused problems in terms of the
legislation on the conservation of cultural and natural heritage) to stay erect
at its place (i.e. not be removed). In his pursuit of this outcome, the
applicant relies on his rights arising from the Law on Intellectual and
Artistic Works. Nonetheless, the act giving rise to the case is, as explained
in detail above, an administrative act which was issued completely within the
sphere of administrative law and with the aim of removing the applicant’s work
from its place in accordance with the rules of administrative law.
Even though the administrative act giving rise
to the present application is such an act that affects the applicant’s
interest/right in his capacity as the author, this effect is not one that makes
it necessary to take into account his rights arising from the Law on
Intellectual and Artistic Works during the issuance or legal review of the act
but rather it merely makes it possible for him to file an administrative action
to secure a review of lawfulness of the act with regard to the factors of
authority, form, reason, subject and aim.
What is to be examined in an action filed on
the basis of this entitlement as a result of the aforementioned effect are: (i)
whether the Kars Municipality has the authority to remove the monument-statue
in question from its place; (ii) whether the removal decision complies with the
form prescribed by the relevant legislation; (iii) whether there are reasons
prescribed by law to be able to issue the removal decision; (iv) whether the
effects and consequences of the removal are lawful; and (v) whether the
decision pursues the aim of protecting the public interest. The subject matter
of an individual application lodged with the Court after the completion of such
proceedings will then be the question of compliance with the principles of fair
trial.
Where this is the case, in order for an
examination to be possible on an alleged violation of the freedom of expression
claimed on with reference to the rights under the Law on Intellectual and
Artistic Works, all the administrative and judicial remedies available in
respect of the said rights must be exhausted prior to lodging an individual
application. With this understanding, seeing that these remedies have not been
exhausted in the present case, we conclude that, although the majority of our
Court declared admissible the alleged violation of the freedom of expression,
the application should have been rejected due to non-exhaustion of available
remedies in so far as relevant to the freedom of expression and, instead, it
should have been examined from the standpoint of the right to a fair trial.
That said, the following can be pointed out on
the merits of the case:
The statue made by the applicant was
constructed on an immovable property (owned by the Treasury) which was not
under the ownership of or allocated to the Municipality but no permission was
obtained from the officials of the Treasury (National Property).
As it is indicated in the dissenting opinion
of Serdar ÖZGÜLDÜR and Muammer TOPAL, even though the Conservation Board
concerned had initially, being unaware of the fact that the Municipality
concerned was not the owner of the immovable property and actually by
acknowledging the Municipality as the owner (see the decision no. 501 dated 23
December 2006 of the Erzurum Regional Board for Conservation of Cultural and
Natural Assets; also the decision no. 523 dated 8 February 2007 of the
Conservation Board), approved the Municipality’s environmental landscaping
project and allowed it to build the statue, a subsequent detailed inspection on
the immovable property revealed that the existing structures (machine gun
emplacements and a vaulted structure) on the land were in fact cultural assets
in need of conservation; therefore, the same Conservation Board consequently
decided that no project implementation would be allowed on this area, the
existing structures had to be demolished, and that legal action would be taken
against anyone who conducts or commissions a project implementation in
contravention of this decision.
Subsequently, the Superior Conservation Board
decided that the construction and physical intervention (statue construction)
being performed without the permission of the immovable property’s owner had to
be assessed within the scope of the Zoning Act (Law no. 3194) and be resolved
by the Municipality concerned.
It should be recalled in at this juncture that
administrations may issue a new act at any time, to the extent they are
authorised with regard to matters within the scope of their duties, in line
with the requirements of public service and public interest. They may also
remove or revoke any of their previous decisions, if any, on the same matter. Otherwise,
administrations would not be able to ever decide in any way to remove a statue
they had placed at a certain location with certain legal issues without
obtaining the “approval” (olur) of persons who enjoy the capacity of
“authorship” within the meaning of the Law on Intellectual and Artistic Works.
In the case at issue, since the legal issues
surrounding the parcel of land had not been resolved and the competent
authorities had asked the Kars Municipality to take the necessary action, the
Kars Municipality decided to remove the applicant’s work from its place on the
grounds that it was built in contravention of the legislation on an immovable
property which was clearly designated as a cultural asset in need of
conservation, owned by a third party, and protected under an absolute
prohibition of construction.
This administrative act was issued at a stage
where there is no requirement of upholding of the applicant’s rights emerging
from the Law on Intellectual and Artistic Works. At the end of a set of proceedings
held by tribunals of administrative justice, which is understood to be in
compliance of the criteria sought by the right for a fair trial, the act was
found not to be unlawful in terms of the factors of authority, form, reason,
subject and aim. Therefore, it is not possible to reach a finding of a
violation of the freedom of expression in respect of the applicant, who is the
“author” of the work within the meaning of the Law on Intellectual and Artistic
Works, due to the dismissal of the action he filed for annulment of the
administrative act.
For these reasons, we disagree with the
majority’s view on the finding of a violation of the applicant’s freedom of
expression.
DISSENTING OPINIONS OF JUSTICES RECAİ AKYEL AND YILDIZ
SEFERİNOĞLU
We disagree with the majority’s view on
finding of a violation of the freedom of expression in the application that was
lodged upon the removal of a monument/statue which had been commissioned to the
applicant by the Kars Municipality.
To elaborate,
A)
A contract was executed between the Kars Municipality and the
applicant, according to which the applicant was duly paid and the statue was
erected in line with its project. Then, it was discovered that there were
remains of military structures and emplacements dating back to the 18th
century in need of conservation on the immovable property where the statue was
erected and that it was necessary to preserve the area due to its historical
value.
On account of the need for conservation of the
historical remains and the military emplacements that symbolised the fight for
liberation put up against the Russian occupation, a choice was made to remove
the statue in question which had been built very recently, did not have
historical value, and could be re-erected somewhere else at a later date.
Regard being had to the facts and events as a
whole, the administrative authorities and the courts opted for preserving the
old artefacts that were part of the cultural heritage in a choice between
protecting old historical artefacts whose destruction would be irreversible and
protecting a new work which could be reproduced at any time. It is clear that
this choice was made as a result of necessity.
B)
The applicant, in his capacity as a “contractor”, signed a
“contract” with the Kars Municipality. The contents and the location of the
statue were defined and the payment that would be made to the
applicant/contractor for this job was agreed upon under this contract.
Section 8 of the contract contained a clause
that provided “In case of termination of the contract, in any event where the
municipality no longer wishes to have the statue built, it may not claim a
refund of the payments that have been already paid and also agrees to pay 50%
of the remainder”.
The present case concerns an incident in which
the Kars Municipality commissioned the applicant via the aforementioned
contract to build a statue/monument on an immovable property which belonged to
the Treasury. The immovable property where the statue was built neither
belonged to the Kars Municipality, nor was it allocated by the Treasury to the
Kars Municipality.
At the end of certain stages, the Regional
Conservation Board rendered a decision regarding the immovable property at
issue, which read “in the light of the new findings unearthed during the
excavation works on the immovable property that is owned by the Treasury, it
must remain registered under the Law no. 2863; … no implementation [of projects]
may be conducted within this area and the existing structures must be
demolished; … the immovable property on which the statue in question is built
may not be sold or allocated pursuant to the Law no. 2863 on Conservation of
Cultural and Natural Assets”.
As it may be understood from the foregoing,
Even though the immovable property where the
statue was built was under the ownership of the Treasury, there was no approval
or allocation given by the owner (Treasury) to this effect but an application
was made by the owner/Treasury for the demolition of the structures built by
the applicant.
Moreover, the immovable property where the
statue was built was registered on grounds of its quality of a “cultural asset
in need of conservation”.
Seeing that the decision to demolish the
statue in question, since it both lacked the approval of the owner of the
immovable property (Treasury) and the property had a “cultural asset” quality,
did not stem from the applicant’s personality as an artist or the nature of the
work of art but in fact pursued the aims of protection of the right to property
of a third party (Treasury) and the preservation of the immovable property
carrying a cultural asset quality, we consider that there has not been any
interference with the applicant’s right to freedom of expression.
Article 35 of the Constitution sets out the
right to property for “everyone” without drawing a distinction between natural
persons and legal entities. Moreover, the reasoning of this Article clearly
indicates that any natural person or legal entity who bears the owner status
can enjoy this safeguard and claim that status. Thus, the protection and
guarantees provided by the Constitution for private property are also
applicable to public property. Indeed, it cannot be considered that the
constituent legislature did not show the same diligence to the protection of
public property as it did to the protection of private property or that the
Constitution leaves the public property without protection (see the Court’s
judgment no. E.1994/49, K.1994/45-2, 7 July 1994).
Furthermore, it should be pointed out that the
“Contract” which was signed between the applicant and the Kars Municipality for
the construction of the statue in question is an agreement of private law and,
therefore, any right emerging from this relationship would be a “relative
right” (nispi hak). Accordingly, where there is an issue concerning the
rights and receivables originating from this contract, they may only be claimed
against the other party to the contract, namely the Kars Municipality. It
should be noted that, vis-à-vis this “relative right”, the right to
property is an “absolute right” which may be claimed against and is to be
respected by everyone.
