REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
PLENARY
JUDGMENT
MEHMET AKSOY
(Application no. 2014/5433)
11 July 2019
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).
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.
37. The Constitutional Court, at its session of 11 July 2019, examined the application and decided as follows:
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).
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.
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.
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.
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.
56. The Court has concluded that Articles 9 and 13 of the Law no. 2863 satisfied the requirement of restriction by law.
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.
(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).
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).
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.
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.
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.
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.
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.
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[1].
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[2].
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[3].
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[4]. 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[5].
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[6]. 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.
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.
[1] The statue, of which the production is understood from the decision no. 421 dated 2 November 2006 of the Erzurum Regional Board for Conservation of Cultural and Natural Assets to have started prior to the launch of the said correspondence and the process, was built as a 30 metres-tall iron-reinforced concrete structure. The completion date cannot be understood from the contents of the case file.
[2] It is understood that the production continued in the meantime for the construction of the monument-statue on the Treasury-owned immovable property as if it had been owned by the Kars Municipality.
[3] It is understood that, in the meantime, the statue in question was removed from its place by means of cutting into seventeen pieces and stored in the Municipality’s warehouse after a tender process held by the Kars Municipality on 7 March 2011.
[4] It is not possible for the applicant to claim any rights against the Kars Municipality on the basis of a decision that had been taken completely within the sphere of administrative law prior to the contract.
[5] Naturally, there is no liability attributable to the applicant in this regard.
[6] In fact, it is understood that the said monument-statue was not completely destroyed but, after the Kars Municipality’s tender process dated 7 March 2011, was dismantled and removed by being cut into 17 pieces (possibly because it was physically and technically impossible to remove it as a single piece) and stored in the Municipality’s warehouse.
