REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 PLENARY

JUDGMENT

EĞİTİM VE BİLİM EMEKÇİLERİ SENDİKASI (EĞİTİM SEN) AND OTHERS

(Application no. 2014/920)

25 May 2017

            THE FACTS

            [8-31] Eğitim ve Bilim Emekçileri Sendikası (“Education and Science Workers Union”) (“EĞİTİM SEN”), the applicant, alleged that during the two years period before the date of application, its members were many times imposed administrative fines under the Misdemeanor Law due to union-related activities.

            By a decision dated 3 June 2013, the Confederation of Kamu Emekçileri Sendikaları Konfederasyonu (“Public Employees Trade Unions”) (“the KESK”), to which the EĞİTİM SEN is affiliated, decided to go on strike for two days on 4-5 June 2013. Twenty-one members of the applicant union made a press statement in the yard of the Çanakkale Fine Arts and Sports High School and started a strike.

            In two separate police reports issued against Telat Koç, one of the applicants, for personally attending the press statement and being the provincial representative of the union, it was stated that the press statement was made in the yard of the high school, which blocked the gate, and that the high school in question was not among the places allowed for a press statement. Therefore a judicial fine was imposed on the applicant by the Provincial Security Directorate on 6 August 2013. Telat Koç’s petition against the judicial fine was accepted by the 1st Chamber of the Çanakkale Magistrates’ Court on 29 November 2013 and the fine was revoked.

            The petition lodged by Telat Koç, on behalf of the applicant union, against the administrative sanction imposed on it on 2 October 2013 was dismissed by the 3rd Chamber of the Çanakkale Magistrates’ Court on 2 December 2013.

            Although the above-mentioned activity was exclusively mentioned in the application form, administrative sanctions were imposed on the members of the applicant union countrywide in the same period. According to the court decisions which were not mentioned in the application form but included in the file, some of the administrative fines were revoked, but some others were not.

            Gülhan Oktay, one of the applicants, as well as a member of the Batman Branch of the Union, attended the press statement of this union held in front of the building of the Batman Provincial Directorate of National Education on 8 May 2013. She alleged that she was imposed administrative fine and that her petition against the relevant decision was rejected by the 2nd Chamber of the Batman Magistrates’ Court. By its letter dated 17 February 2014, the Constitutional Court requested criminal records and other documents pertaining to Gülhan Oktay. Although, the applicant’s representative submitted documents with respect to many members of the union, he did not submit documents concerning Gülhan Oktay. 

V. EXAMINATION AND GROUNDS

32. The Constitutional Court, at its session of 25 May 2017, examined the application and decided as follows.

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

33. The applicants maintained that their being imposed an administrative fine for having made a press statement constituted a violation of their right to hold meetings and demonstrations. According to them, the union meetings and press statements did not constitute an offence in terms of criminal law; however, the administration considered their activities within the scope of Law no. 5326. Therefore, arbitrary punishments were imposed on them. They considered that the administrative fines imposed on them were unpredictable; and that the press statements posed a threat neither the public order nor to public safety.

34. They further asserted that while the challenges against administrative fines were accepted by many courts, their challenges were dismissed without justification, which resulted in a violation of their right to a fair trial. In this respect, the applicants requested the Court to find a violation, to award compensation for pecuniary damage as well as to require the administration imposing the administrative fine to apologize to them.

35. In its observations, the Ministry noted that the right to freedom of assembly was applicable to both those holding meetings and the participants; and that the State was obliged not only to protect this right but also to abstain from imposing unreasonable restrictions. It was further indicated that the orders issued by the Governor’s Office intended to ensure safety of those attending the meetings and demonstrations and citizens as well as to maintain public order; and that as the fines imposed on the applicants, who had acted contrary to this order, were in insignificant amounts, “the minimum level of severity” had not been attained.  

36. In their counter-statements against the Ministry’s observations, the applicants reiterated their arguments in the application form. 

B. The Court’s Assessment

37. Relevant part of Article 34 of the Constitution, titled “Right to hold meetings and demonstration marches”, reads as follows:

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

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

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

38. Relevant provisions of Article 51 of the Constitution, titled “Right to union” read as follows:

“Employees and employers have the right to form unions and higher organizations, without         prior permission, and they also possess the right to become a member of a union and to freely   withdraw from membership, in order to safeguard and develop their economic and social rights   and the interests of their members in their labour relations. No one shall be forced to become a        member of a union or to withdraw from membership.

The right to form a union shall be solely restricted by law on the grounds of national security,      public order, prevention of commission of crime, public health, public morals and protecting       the rights and freedoms of others.

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

39. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). The discrete and unfounded complaints raised by the applicants Telat Koç and Gülhan Oktay that their rights to a reasoned decision had been violated must be examined, as a whole, within the ambit of the right to hold meetings and demonstration marches.

40. Before the strike, a press statement revealing the purpose of the strike was issued in all workplaces where the workers associated under this union, and the union members then left their workplaces. Thereafter, the applicant union was imposed an administrative fine due to a union-related activity falling into the scope of its right to hold meetings and demonstration marches. Therefore, the applicant union’s complaints must be examined within the ambit of the right to form a union.

1. Admissibility

a. As Regards the Applicant Telat Koç

41. As set out in Article 46 of the Code on the Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011 and numbered 6216 (Law no. 6216), an individual application may be lodged with the Court only when an applicant has been personally and directly affected by the impugned public act or action allegedly having resulted in violation (see Onur Doğanay, no. 2013/1977, 9 January 2014, §§ 42-45).

42. In the present case, the case filed by the applicant against the administrative sanction was accepted by the first instance court which then revoked the decision imposing the sanction. It has been therefore seen that the applicant was not personally affected by the public act or action allegedly giving rise to the violation.

43.  For these reasons, the application lodged by Telat Koç was declared inadmissible for being incompatible ratione personae, without any further examination as to the other admissibility criteria.

b. As Regards the Applicant Gülhan Oktay

44. Pursuant to Article 47 § 3 as well as Article 48 §§ 1 and 2 of Law no. 6216, the facts as to the violation allegedly caused by a public authority must be summarized chronologically, and the way how the rights safeguarded by the individual application mechanism have been violated, as well as the reasons and evidence with respect thereto, must be explained in the individual application form (see Veli Özdemir, no. 2013/276, 9 January 2014, §§ 19 and 20).

45. In the present case, the applicant was asked to submit the evidence she relied on; however, she failed to fulfil her obligation to submit the evidence related to the alleged violation. It has been accordingly concluded that the applicant failed to substantiate her allegations.

46. For these reasons, the application lodged by Gülhan Oktay was declared inadmissible for being manifestly ill-founded, without any further examination as to the other admissibility criteria.

c. As Regards the Applicant EĞİTİM SEN

47. The application lodged by the applicant union was not manifestly ill-founded and there being no other grounds for its inadmissibility. Accordingly, the alleged violation of the applicant’s right to union was declared admissible.

2. Merits

a. Existence of Interference

48. Not only the actions performed during the exercise of the right to union but also those performed subsequent to its exercise have a “restraining” effect on the right (for a judgment within the context of the right to assembly, see Osman Erbil, no. 2013/2394, 25 March 2015, § 53). It must be therefore acknowledged that even if there was no interference by the police with the press statement organized by the applicant union and attended by its members, the applicant union’s being sentenced to an administrative fine constituted an interference with its right to union.

b. Whether the Interference Constituted a Violation

49. Relevant part of Article 13 of the Constitution reads 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.”

50. The said interference would constitute a breach of Article 51 of the Constitution unless it satisfied the conditions set out in Article 13 of the Constitution.

51. Therefore, it must be determined whether the restriction complied with the requirements set out in Article 13 of the Constitution and applicable to the present case, namely being prescribed by law, relying on the reasons specified in the relevant provision of the Constitution as well as not being contrary to the requirements of a democratic society and the proportionality principle.

i. Lawfulness

52. The applicant alleged that there had been a breach of the requirement that the interference be made by law, which was set out in Articles 13 and 51 § 3 of the Constitution. It asserted that Article 32, titled “Disobedience of an Order”, of the Misdemeanour Law no. 5326 was not foreseeable and required to be interpreted; and that the administrative authorities invoking this provision could arbitrarily impose punishments. The Ministry expressed no opinion on this matter.

(1) General Principles

53. In case of any interference with a right or freedom, the issue to be primarily determined is whether there is any provision of law allowing the interference to subsist. An interference may be considered to have satisfied the lawfulness requirement within ambit of Article 34 of the Constitution only when it has a “legal” basis (for judgments pointing out the lawfulness requirement in different contexts, see Tuğba Arslan [Plenary], no. 2014/256, 25 June 2014, § 82; Sevim Akat Eşki, no. 2013/2187, 19 December 2013, § 36; and Hayriye Özdemir, no. 2013/3434, 25 June 2015, §§ 56-61).

54. As regards the restrictions on fundamental rights and freedoms, the lawfulness requirement primarily necessitates the formal existence of a law. Law as a legislative act is a product of the will of the Grand National Assembly of Turkey (“the Assembly”) and is enacted by the Assembly by complying with the law-making procedures enshrined in the Constitution. Such an understanding affords a significant safeguard for fundamental rights and freedoms.

55. Nevertheless, the lawfulness requirement also encompasses a material content, and thereby, the quality of the wording of the law becomes more of an issue.  In this sense, this requirement guarantees “accessibility” and “foreseeability” of the provision imposing restriction as well as its “clarity” which amounts to its certainty.

56. Certainty means that content of a provision must not lead to arbitrariness. Legal arrangements concerning the restriction of fundamental rights must be precise in terms of its content, aim and scope as well as clear to the extent that the addressees could know their legal status. A provision of law must certainly indicate the acts or actions which shall be subject to any criminal sanction and thereby, the power of interference afforded to the public authorities. Thus, individuals may foresee their rights and obligations and act accordingly. Thereby, legal certainty is ensured, and bodies exercising public power are prevented from performing arbitrary acts (see Hayriye Özdemir, §§ 56, 57).

57. In the present case, it was alleged that the administration had been afforded an unlimited power by Article 32 of Law no. 5326 where the scope of the administration’s discretionary power and the manner how it would be exercised were not specified clearly to the required extent.

58.  First, as per Article 8 of the Constitution, it is possible for the legislator to only determine the main rules on the issues likely to be regulated by law and to leave the subsidiary and implementing rules to the administration which would determine them through its regulatory acts. In other words, any issue not required -by virtue of the Constitution- to be certainly prescribed by law may be regulated through the administration’s regulatory acts, on condition of having a legal basis (see Tuğba Arslan, §§ 85-87).

59. In the sphere of fundamental rights and freedoms, there is a requisite for the legislator to make foreseeable arrangements that would not allow for arbitrariness. It may be in breach of the Constitution to afford the administration a wide margin of appreciation so as to result in arbitrary practices. Measures to be taken by the executive, relying on a provision of law, in the sphere of fundamental rights and freedoms must be objective and must not provide the administration with a broad discretionary power that would lead to arbitrary practices (see the Court’s judgment no. E.1984/14, K.1985/7, 13 June 1985; and Tuğba Arslan, § 89).

60. Uncertainty in such assessments renders the safeguards introduced for fundamental rights ineffective. That is because, if a provision of law fails to certainly indicate the acts or actions which shall be subject to any criminal sanction and the power afforded to the public authorities for interference, the individuals may be precluded from foreseeing their rights and obligations and from acting accordingly (see Hayriye Özdemir, § 57).   

61. However, even if a provision is complex or is of abstract nature to a certain extent and could therefore become fully comprehendible only through legal assistance or the concepts used therein could be defined only after a legal assessment, this does not per se fall foul of the principle of legal foreseeability. Besides, the more the extent of the interference by the relevant legal arrangement with fundamental rights is, the higher the extent of certainty to be sought in this arrangement will be (see Hayriye Özdemir, § 58).  

62. Otherwise, it will be concluded that the provision is not accessible, foreseeable and definite to the extent that would preclude arbitrary acts of the bodies exercising public power and enable individuals to know the law, as enshrined in Article 13 of the Constitution (see Tuğba Arslan, § 91).

63. It is not for the Court to interpret the provision of law forming a basis for the impugned interference. Besides, in applying the relevant provision, the public authorities notably the judicial bodies must adopt a style of interpretation compatible with the Constitution. In this regard, the Court’s task is limited to review the compliance of the interpretation and practice in question with the Constitution (see Hayriye Özdemir, § 61).

(2) Application of Principles to the Present Case

            64. The present case must be assessed within the framework of the above-mentioned principles. In the first place, Article 32 of Law no. 5326 was enacted by the Assembly complying with the procedures of enacting a law that are prescribed in the Constitution, and it undoubtedly constitutes a law in its form. In the second place, there is no problem as to the accessibility of the impugned provision as the laws adopted by the Assembly are promulgated by the President in the Official Gazette pursuant to Article 89 of the Constitution. In the last place, it must be examined whether the said provision is foreseeable or not.

            65. As required by Article 32 of Law no. 5326, the competent authorities deem, as a misdemeanour, the failure to abide by an order which has been lawfully issued by competent authorities within the scope of any judicial act or for the purposes of maintaining public safety, public order or public health. A person guilty of this misdemeanour is imposed an administrative fine which is determined by the authority issuing the relevant order.  

66. In 1973, the Court examined the alleged unconstitutionality of the provision which is set forth in Article 526 of the repealed Turkish Criminal Code no. 765 and dated 1 March 1926 under the main heading “Disobedience of Orders Issued by Competent Authorities” and which is quite similar to the provision set out in Article 32 of the current Misdemeanour Law. In this decision, the Court considered that the legislator was entitled, in making laws, to exhaustively establish all rules by paying regard to all possibilities; and that however, the legislator may −as an exercise of its legislative power− confer the authority to take measures upon the government or certain authorities in emergency cases after establishing the main provisions, as it was functioning slowly, by its very nature, in the face of frequently changing circumstances and needs and it was difficult for the legislator to follow-up events taking place on daily basis and to take the necessary measures. The Court accordingly found the provision not in breach of the Constitution (see the Court’s judgment no. E.1973/12, K. 1973/24, 7 June 1973). In its a more recent decision, the Court dismissed, on similar grounds, the alleged unconstitutionality of the provision which is set forth in Article 66 § 1 of the Law no. 5442 on Provincial Administration and which provides for that in case of any social events to jeopardize public order and safety or safety of individuals’ lives and properties, those who act contrary to the orders and measures, which have been taken by the Governor for ensuring public order and announced properly, shall be deprived of their liberty (see the Court’s judgment no. E. 2015/41, K.2017/98, 4 May 2017, § 184). The Court indicated therein that provisions of law -where the subject-matter of the offence and the envisaged punishment were defined in doctrine but which did not indicate the concrete act that would constitute the offence but left such determination to the administration- were called as “framework law” or “open-ended criminal provision”; and that the impugned provision was one of them. In its many decisions, the Court noted that the acts and actions performed relying on an open-ended criminal provision would not fall foul of the principle of legality in criminal offences and penalties (see the Court’s judgments no. E.1962/198, K.1962/111, 10 December 1962; no. E.1963/4, K.1963/71, 28 March 1963; no. E.2001/143, K.2004/11; and no. E.2011/64, K.2012/168, 1 November 2012). The Court indicated that in order for an “open-ended criminal provision” to be found constitutional, the subject-matter of the offence and its penalty must be clearly defined in law to the extent that would cause no doubt, and individuals must be afforded legal safeguard which would ensure them to already know the said criminal act. According to the Court, the relevant provision could be only thereby ensured to be accessible and foreseeable (see the Court’s judgment no. E. 2015/41, K. 2017/98, 4 May 2017, §§ 180-187).

67. As per Article 32 § 2 of Law no. 5326, scope and conditions of certain misdemeanours may be established by laws which may nevertheless leave the task of determining its content to the administration’s general and regulatory acts. In other words, types and amounts of sanctions to be imposed in case of a misdemeanour are clearly specified in the said provision; however, which authorities may issue an order and on which matters have been left to the other laws. By Article 11 of Law no. 5442, governors have been entrusted with the authority to take the decisions and measures required for ensuring peace, security and public welfare within the provincial boundaries. According to Article 66 of the same Law, these decisions shall be properly notified or announced, and those acting contrary to these measures or decisions shall be punished by the governor pursuant to Article 32 of Law no. 5326.

68. In the present case, the Çanakkale Governor’s Office ordered, by its decision of 20 December 2012 and relying on the authority conferred by Law no. 5442, that no press statement would be issued at the buildings and premises of educational institutions. It notified and announced this decision to all official bodies and non-governmental organizations. In this respect, nor did the applicant in his capacity as the chairperson of the branch of the union maintain that he had not been aware of this order. It is explicit that any act contrary to the Governor’s order will constitute a misdemeanour which will require a penalty pursuant to Law no. 5326.  

69. For the reasons explained above, it has been concluded that Article 32 of Law no. 5326 was an accessible, foreseeable and precise provision of law and satisfied the requirement of “being restricted by law”.

ii. Legitimate Aim

70. It has been concluded that the decision imposing an administrative fine on the applicant was a part of the measures for maintaining “public order”, which are set out in Article 51 § 2 of the Constitution, and pursued a legitimate aim.

iii. Compatibility with the Requirements of the Democratic Order of the Society and Proportionality

(1) General Principles

71. The issue before the Court is whether the interference with the press statement issued at the building and premises of a secondary educational institution was necessary in a democratic society and proportionate.

72. As explained above, the applicant was imposed an administrative fine on account of a union-related activity falling within the ambit of the right to hold meetings and demonstration marches. This right intends to protect the opportunity afforded to the individuals for uniting in order to collectively defend and announce their ideas. Therefore, this right is a special aspect of the freedom of expression safeguarded by Articles 25 and 26 of the Constitution. That is why the significance of the freedom of expression in a democratic society is also applicable to this right. In this regard, the present application must be examined in the light of Articles 26 and 34 of the Constitution and pursuant to Article 51 thereof.

73. The Court on numerous occasions explains what should be inferred from the concept “requirements of a democratic order of the society”.  Accordingly, a measure restricting fundamental rights and freedoms must meet a pressing social need and must be of last resort (see Tayfun Cengiz, no. 2013/8463, 18 September 2014, § 56; Adalet Mehtap Buluryer, no. 2013/5447, 16 October 2014, §§ 103-105; Kristal-İş Union [Plenary], no. 2014-12166, 2 July 2015, § 70; and see, in the context of the freedom of expression, Bekir Coşkun [Plenary], no. 23014/12151, 4 June 2015, § 51; Mehmet Ali Aydın [Plenary], no. 2013/9343, 4 June 2015, § 68; and Tansel Çölaşan, no. 2014/6128, 7 July 2015, § 51). The inferior courts are afforded a certain margin of appreciation to consider whether such a need exists. However, this margin of appreciation is subject to the Court’s review.

74. Besides, it must be examined whether a restriction on fundamental rights and freedoms is a proportionate restriction allowing minimum interference with the fundamental rights, along with being necessary in a democratic society (see the Court’s judgment no. E.2007/4, K.2007/81, 18 October 2007; and for explanations as to the principle of proportionality within the meaning of the right to union, see Kamuran Reşit Bekir [Plenary], no. 2013/3614, 8 April 2015, § 63; Bekir Coşkun §§ 53, 54; Abdullah Öcalan [Plenary], no. 2013/409, 25 June 2014, §§ 96-98; Tansel Çölaşan §§ 54,55; and Mehmet Ali Aydın §§ 70-72). Therefore, it must be considered whether a fair balance was struck between the measures −specified in Article 51 § 2 of the Constitution and deemed necessary for attaining legitimate aims− and the right to union. In making such an examination, the freedom of expression and the right to hold meetings and demonstration marches must also be taken into consideration.

Right to Union

75. In democracies, existence of organizations whereby citizens unite and may pursue common aims is a significant element of a sound society. Such an “organization” is afforded fundamental rights required to be respected and protected by the State. Unions that are the organizations aiming to protect the interests of their own members in the professional area form a significant part of the freedom of association whereby individuals establish collective formations in order to secure their own interests (for explanations on the freedom of association, see Tayfun Cengiz, §§ 30-32; and Selda Demir Taze, no. 2014/7668, 10 June 2015, §§ 29, 30).

76. In its recent judgments, the Court emphasizes that the freedom of association in general and the right to union in private are among the freedoms enshrined in the Constitution as a basic value and embodying the democracy; and that they form one of the basic values of a democratic society. According to the Court, the manner how the unions express their opinions within the framework of a union-related activity also benefits from the safeguards afforded by the right to union, even if not acceptable to the competent authorities. The Court indicates that the democracy, by its very nature, provides an opportunity for public discussion and resolution of matters; and that individuals exercising their right to union will also benefit from the safeguards afforded for the basic principles of a democratic society, such as pluralism, tolerance and open-mindedness, as in the field of the freedom of expression (see Tayfun Cengiz, § 52; and Selda Demir Taze, §§ 48, 49).

Freedom of Expression

77. The freedom of expression safeguarded in Article 26 § 1 of the Constitution is one of the essential foundations of the democratic society and constitutes one of the primary conditions for progress of the democratic society and self-fulfilment of each individual. Social pluralism may be achieved only in a free platform where any kind of opinion may be expressed freely. In this sense, ensuring social and political pluralism depends on the peaceful and free expression of any kind of opinion (see Yaman Akdeniz and Others, no. 2014/3986, 2 April 2014, § 25).

78. In its many judgments, the Court has made a reference to the judgments of the European Court of Human Rights where it is indicated that the freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. The Court has endorsed that these kinds of opinions are the demands of pluralism, tolerance and broadmindedness without which there was no ‘democratic society’ (see Fatih Taş [Plenary], no. 2013/1461, 12 November 2014, § 94; Bejdar Ro Amed, no. 2013/7363, 16 April 2015, § 63; and Abdullah Öcalan, § 95).

Right to Hold Meetings and Demonstration Marches

            79. The right to hold meetings and demonstration marches safeguards manifestation, protection and dissemination of different thoughts that are sine qua non for the improvement of pluralist democracies. Therefore, interferences with the right to hold meetings and demonstration marches must -in spite of its unique function and field of exercise- be interpreted more narrowly in political matters and other matters of public interest, as in the freedom of expression (see Osman Erbil, no. 2013/2394, 25 March 2015, § 45).

            80. The right to hold meetings and demonstration marches is one of the basic values of a democratic society where individuals should be provided with an opportunity for expressing, by way of meetings and other legal means, their opposing political views that are aimed to be materialized through peaceful means. Therefore, radical measures of a preventive nature which preclude the exercise of the freedom of assembly impair democracy, except in cases where there is incitement to violence and where it is intended to eliminate the principles of democracy (see Ali Rıza Özer and Others [PA], no. 2013/3924, 6 January 2015, § 117; and Osman Erbil, § 47).  

            81. It is a requisite of the pluralist democracy that the State must show patience and tolerance towards the acts of individuals -who have assembled for peaceful objectives- that do not constitute any threat to, and include any violence for, public order in exercising their freedom of assembly. However, if there is a real threat to public order stemming from the exercise of the freedom of assembly, competent authorities may take the measures to eliminate such threats. Individuals who have held, attended, or committed offences during, meetings contrary to these measures may also be punished.

            82. However, it cannot be permitted that the taken measures or the imposed punishments would indirectly turn into undue restrictions. In enjoying his freedom of assembly that is safeguarded, the individual must be protected also against the arbitrary interferences of the public authorities (see Ali Rıza Özer and Others, § 118).

            83. Therefore, it must be shown with reasonable grounds that the interference -whereby measures have been taken or those acting contrary to these measures have been punished- with a peaceful meeting which falls within the scope of a union activity or is held for any other motive is necessary in a democratic society.

(2) Application of Principles to the Present Case

84. In the present case, the Çanakkale Governor’s Office issued an order for not delivering a press statement at, inter alia, buildings and premises of the primary and secondary educational institutions. Regard being had to the order of the Çanakkale Governor’s Office, it has been observed that the places where no press statement would be made were certain buildings such as the intelligence department, security directorate and penitentiary institutions. Therefore, the legal framework forming a basis for the applicant’s punishment in the present case cannot be considered as a restraining order of general nature.

85. In addition, the State is to take precautions that will protect the children studying at primary and secondary educational institutions as well as the educational order. Rules on the educational institutions may vary by the social needs and resources as well as features specific to different levels of education. Therefore, it must be acknowledged that the State is afforded a certain margin of appreciation in regulations and practices it will make on this issue.

86. It is acceptable that holding a meeting or demonstration, for any purpose other than education, at the school building and its premises during the school time may disturb the children or impair the educational order. Therefore, it must be acknowledged that such interference with a meeting as in the present case is necessary in a democratic society so long as it meets a social need. However, in the police report issued with respect to the impugned incident, there was no assessment as to the fact that the press statement in question had, as a foreseeable consequence thereof, caused delay in certain activities or disturbed public order. 

            87. Lastly, it must be admitted that the misdemeanour “disobedience of an order” set out in Article 32 of Law no. 5326 may be probably in question in cases where there are indirect interferences with peaceful demonstrations. Pursuant to this Article, the aim pursued by the order given by the competent authorities is to protect public safety, public order or public health. It is not for the Court to determine whether the conditions prescribed by law for existence of a misdemeanour are present in the instant case as well as what the elements of the misdemeanour must be. However, if the order issued by a competent authority or the punishment imposed on account of disobedience of the order constitutes an interference with a constitutional right, this interference falls within the jurisdiction of the Court.

            88. In the event that an individual is punished merely for acting contrary to an order and the Court upholds that there is an interference with fundamental rights and freedoms, the primary question to be subsequently dealt with by the Court is to whether disobedience of the order has disrupted public order or whether such risk exists. 

            89. The Court cannot find merely disobedience of a properly issued order sufficient for an interference with fundamental rights and freedoms. It must be also proven that public safety, public order or public health -which is the aim pursued by the order issued- has been disrupted or such a risk exists, which would justify the interference with the fundamental right. Any act or action performed by a public authority whereby the fundamental rights have been interfered may be in breach of the fundamental rights and freedoms, unless it is demonstrated with relevant and sufficient grounds that the public order has been disrupted.

            90. In the present case, neither the administration nor the inferior courts maintained that the press statement issued by the members of the applicant union had interrupted the educational activities, intimidated and disturbed the students, impaired public order or caused such a risk. On the contrary, the law-enforcement officers or the administration did not need to intervene in the press statement. The administrative fine imposed on the applicant was subsequently issued by the law-enforcement officers. As a matter of fact, the administrative fine imposed on Telat Koç was revoked by the first instance court which pointed out the peaceful nature of the said press statement and also noted that the press statement did not include violence.

            91. As in the present case where the demonstrators were not involved in any acts of violence, public authorities must tolerate, to a certain extent, the actions falling within the ambit of the right to hold meetings and demonstration marches. A peaceful demonstration or press statement must be, in principle, exempted from the risk of being criminally sanctioned.

            92. In cases where this right is restricted for special reasons such as the specific nature of the place where demonstration or press statement is held, it must be shown in the decisions of the competent authorities using public power (for instance, in the relevant police reports or reasoning of the inferior courts) that the interferences to be made -pursuant to the orders given by the competent authorities- are necessary for maintenance of public order or that the punishments are imposed for disturbing public order or for the existence of such risk.

            93. Consequently, in the present case, a fair balance could not be struck between the measures deemed necessary for attaining the legitimate aims specified in Article 51 § 2 of the Constitution and the rights afforded under the same provision to the applicant union. It has been accordingly concluded that the administrative fine imposed on the applicant was not necessary, pursuant to Article 13 of the Constitution, for maintaining order in the educational institution.

            94. For these reasons, the Court found a violation of the right to union safeguarded by Article 51 of the Constitution.

            Mr. Kadir Özkaya and Mr. Recai Akyel did not agree with this conclusion.

3. Application of Article 50 of Code no. 6216

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

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

(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed.   In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown.   The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

            96. The applicant union requested the Court to order the reimbursement of the administrative fine as pecuniary damage.

            97. It was concluded that the applicant’s right to union had been violated.

            98. For the Court to award pecuniary compensation, there must be a casual link between the pecuniary damage allegedly sustained by the applicant union and the violation found. As the applicant did not submit any document in this respect, the Court dismissed its claim for pecuniary damage.    

            99. The total court expense of TRY 2,006.90 including the court fee of TRY 206.90 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicant union.  

VI. JUDGMENT

For these reasons, the Constitutional Court held on 25 May 2017:  

A.   1. UNANIMOUSLY that the applicant Telat KOÇ’s application be DECLARED INADMISSIBLE for being incompatible ratione personae;

       2. UNANIMOUSLY that the applicant Gülhan OKTAY’s application be DECLARED INADMISSIBLE for being manifestly ill-founded;

       3. UNANIMOUSLY that the alleged violation of the applicant EĞİTİM SEN’s right to union be DECLARED ADMISSIBLE;

B. By MAJORITY and by dissenting opinions of Mr. Kadir Özkaya and Mr. Recai Akyel, that the right to union safeguarded under Article 51 of the Constitution was violated;

C. The applicant union’s claim for compensation as well as its other claims be DISMISSED;

D. The total court expense of TRY 2,006.90 including the court fee of TRY 206.90 and the counsel fee of TRY 1,800 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 Finance following the notification of the judgment. In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date;

F. A copy of the judgment be REMITTED to the 3^rd Chamber of the Çanakkale Magistrates’ Court; and

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

DISSENTING OPINIONS OF JUSTICES KADİR ÖZKAYA AND RECAİ AKYEL

            In the present case, the labour union decided to issue a press statement at workplaces prior to the strike to be enforced at all workplaces where the labour union was organized, in order to announce the purpose of the strike. Accordingly, certain members of the union made a press statement at a place where issuing a statement was forbidden by the Governor’s Office. Therefore, a fine was imposed on the union.  After the union’s challenge against the fine had been dismissed, the applicants including the union requested the Court to find a violation of their right to union by maintaining that their act fell within the ambit of the right to union safeguarded by Article 51 of the Constitution and could not be considered as a misdemeanour; that besides, the act neither caused damage or posed a threat to public order and safety nor included violence; and that it was not a criminal act.

            Upon examination of the application, it was unanimously acknowledged that there was an interference with the applicant union’s right to union; that the interference was found to be lawful and to pursue a legitimate aim; and that the question to be dealt with by the Court in the present case was to determine whether the interference whereby an administrative fine had been imposed on account of a press statement issued at the building and premises of a secondary educational institution was necessary in a democratic society and proportionate.

            Majority of the Court did not consider the legal framework forming a basis for the fine imposed on the union as a restraint measure of general nature, but considered that the State must take measures that would protect the children studying at primary and secondary educational institutions and the order at these institutions; that the rules concerning educational institutions might vary by social needs and resources and features specific to different levels of education; that the State was afforded a certain margin of appreciation in legal arrangements and practices to be made in this field; that holding a meeting and demonstration at the school building and its premises during school time might disturb the students or impair the educational order; and that an interference with a meeting as the one in the present case might be necessary in a democratic society to the extent it met a social need. However, it was emphasized that the police report included in the case-file did not include any assessment as to the fact that the impugned press statement had foreseeably caused delay in certain activities or had disrupted public order. Following the establishment of these findings, it was further indicated that the Constitutional Court could not find merely disobedience of a lawful order sufficient for an interference with fundamental rights and freedoms; that it must be also proven that public safety, public order or public health -which was the aim pursued by the order issued- had been impaired or such a risk existed, which would justify the interference with the fundamental rights and freedoms; that any act or action performed by a public authority whereby the fundamental rights have been interfered might be in breach of the fundamental rights and freedoms, unless it was demonstrated with relevant and sufficient grounds that the public order had been impaired; and that however, in the present case, neither the administration nor the inferior courts maintained that the press statement issued by the members of the applicant union had interrupted the educational activities, intimidated and disturbed the students, impaired public order or caused such a risk. It was further indicated that as in the present case where the demonstrators did not get involved in the acts of violence, public authorities must tolerate, to a certain extent, the actions falling within the ambit of the right to hold meetings and demonstration marches; that a peaceful demonstration or press statement must be, in principle, exempted from the risk of being criminally sanctioned; that in the present case, a fair balance could not be struck between the measures deemed necessary for attaining the legitimate aims specified in Article 51 § 2 of the Constitution and the rights afforded under the same provision to the applicant Union; and that it was accordingly concluded that the applicant’s right to union  had been infringed as the administrative fine imposed on it was not necessary for maintaining order in the educational institution pursuant to Article 51 § 2 of the Constitution.

            We completely agree with the explanations and conclusions of the judgment rendered by the Court’s majority under the headings “(3) Compatibility with the Requirements of the Democratic Order of the Society and Proportionality” and sub-headings “General Principles”, “Right to Union”, “Freedom of Expression” and “Right to Hold Meetings and Demonstration Marches”. However, we do not agree with the considerations under the heading “application of principles into the present case” and the conclusion of violation reached by the esteemed majority of the Court for the following reasons.

            In Article 34 of the Constitution, it is set forth that everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission; that the right to hold meetings and demonstration marches shall be restricted only by law on the grounds of national security, public order, prevention of commission of crime, protection of public health and public morals or the rights and freedoms of others; and that the formalities, conditions, and procedures to be applied in the exercise of the right to hold meetings and demonstration marches shall be prescribed by law. The relevant provisions of Article 51 of the Constitution titled “Right to form unions” set out that employees and employers have the right to form unions and higher organizations, without prior permission, and they also possess the right to become a member of a union and to freely withdraw from membership, in order to safeguard and develop their economic and social rights and the interests of their members in their labour relations; that no one shall be forced to become a member of a union or to withdraw from membership; that the right to form a union shall be solely restricted by law on the grounds of national security, public order, prevention of commission of crime, public health, public morals and protecting the rights and freedoms of others; and that the formalities, conditions and procedures to be applied in exercising the right to form union shall be prescribed by law.

            Accordingly, the right to union may be restricted for the purpose of maintaining public order.

            In Article 13 of the Constitution, it is set forth that fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence; and that these restrictions shall not be contrary to the requirements of the democratic order of the society and the principle of proportionality.

            In Article 11 of the European Convention on Human Rights (“the Convention”) titled “Freedom of assembly and association”, it is set out that everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests; and that no restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

            Article 11 of the Law no. 5442 on Provincial Administration sets out that the governor shall have the duty, inter alia, to secure peace and security, personal immunity, safety of private property, public well-being and the authority of preventive law enforcement; that the governor shall take necessary decisions and measures to this end; and that provisions of Article 66 shall apply to those who do not comply with such decisions and measures. In Article 66, it is prescribed that the local civil administrator shall impose penalties, pursuant to Article 32 of the Misdemeanour Law, on those who resist or make difficulty or disobey the implementation and execution of decisions and measures duly taken and notified or announced by the general provincial council or administrative committee or the highest civil administrator based on the powers conferred by laws; and that however, in the event of an outbreak of social events which endanger the public order and public security or safety of people’s life and property, those who act contrary to the measures taken by the governor in order to secure the public order, shall be punished by a prison term of 3 months to 1 year.

            In Article 32, titled “disobedience of an order”, of the Misdemeanour Law no. 5326, it is set forth that persons acting contrary to the lawful orders given by competent authorities within judicial proceedings or in order to secure public safety, public order or public health shall be punished with an administrative fine (100 Turkish liras); and that the punishment is imposed by the authority who has issued the order.

            In the Turkish Criminal Code no. 765, which was in force until 1 June 2005, the acts qualified as an offence are divided into two groups: offences and misdemeanours. The question whether a criminal act is misdemeanour or an offence is determined by the punishments prescribed in the law (for instance, if heavy imprisonment or imprisonment is imposed on account of a criminal act, it is classified as an office while if light imprisonment is imposed, the act is classified as a misdemeanour). However, as it was subsequently considered that if imposition of a non-criminal sanction was found sufficient for an act for the protection of a legal value, this act must be qualified as a misdemeanour, certain changes were introduced in the Turkish criminal system. Accordingly, some of the misdemeanours specified in the former Turkish Criminal Code no. 765 are prescribed as an offence in the Turkish Criminal Code no. 5237, whereas some of these acts in respect of which imposition of an administrative sanction is found sufficient are qualified as a misdemeanour in Law no. 5326.

            In Article 1 of the Misdemeanour Law no. 5326, it is set forth that the legal arrangements therein were introduced with a view to maintaining social order, public morality, public health, environment and economic order. In Article 2, the notion of “misdemeanour” is defined as a grievance on account of which imposition of a sanction is prescribed by law.

            As is known, through the provisions of the misdemeanour law, the State unilaterally dictates that what must or must not individuals do in order to maintain social order, public moral, public health, environment and economic order, and also notes that in case of any infringement, a sanction shall be imposed. The reason why an act is subject to a sanction in the misdemeanour law is the fact that this act has violated a norm. Accordingly, regardless of its result, the reason why a sanction is imposed due to violation of a norm is to prevent the occurrence of acts which may take place due to violation of this norm and may impair, or pose a threat to, social order. For instance, the act of running a red light either cause loss of life and property or cause no public damage. Nevertheless, this act is subject to a sanction in order to prevent accidents likely to take place on account thereof. Therefore, in qualifying an action or inaction as a misdemeanour and subjecting it to a sanction, the question taken into consideration is not whether the impugned action or inaction has impaired social order, but what is intended is to prevent such risk from materializing. In other words, an action or inaction may be sometimes prescribed as a misdemeanour with a view to protecting public order. The public interest at this stage is the prevention of materialization of such risk.    

            In the present case, within the above-mentioned legal framework, the Çanakkale Governor’s Office ordered, by its decision of 20 December 2012, that no press statement shall be made at places such as mosques, hospitals, quarters as well as at buildings and premises of educational institutions. This decision was announced and notified to all official institutions and non-governmental organizations. In this respect, nor did the applicant union maintain that it had not been aware of this decision or no press statement had been issued at a place prohibited by the order (at the entrance of the school building). Therefore, issuing a press statement at the yard of the school building undoubtedly constitutes a misdemeanour.

            States are obliged not only to protect the right to peaceful assembly, but also to avoid imposing unreasonable and indirect restrictions on the enjoyment of this right. Besides, the States may stipulate formal conditions for holding meetings -such as notification or place restriction- with a view to maintaining or protecting peace and order; in other words to ensuring safety of both those attending the demonstration and other individuals having no connection and link with the demonstration as well as to protecting public order.

            In the present case, the Çanakkale Governor’s Office did not issue an order only for labour unions, or for the purpose of restricting or prohibiting their union activities or press statement. Moreover, no order was issued with respect to the contents of union activities or press statements. The fine was not imposed due to these reasons but on account of the fact that the applicant union had disrupted public order by enjoying its right to organize meeting and demonstration (press statement) at a place prohibited by the Governor’s Office.

            The order issued by the Governor’s Office prohibited making press statement at, inter alia, buildings and premises of primary and secondary educational institutions. Regard being had to this order as a whole, it has been observed that the places where no press statement can be issued are limited to certain places such as buildings of intelligence department, security directorate and penitentiary institutions. Therefore, as also noted in the majority’s opinion, the legal framework forming a basis for the applicant’s punishment cannot be considered as a restraint measure of general nature.

            Besides, as also indicated in the majority’s opinion, the State must take measures that would protect the children studying at primary and secondary educational institutions and the order at these institutions. The rules concerning educational institutions might vary by the needs and resources of the society and features specific to different levels of education. Therefore, the State was afforded a certain margin of appreciation in arrangements and practices to be made in this field. It is highly probable that holding a meeting and demonstrating at a school building and its premises at any time when educational activities are going on, for any purposes other than education, will cause disturbance to students or impair the order within the educational institution.

            Accordingly, even if the demonstrators were not involved in any acts of violence, the meeting was of peaceful nature and the impugned act did not cause a substantial deterioration in public order, merely issuing a press statement at educational institutions where the right to education was exercised would be in breach of the order (public order established through this order) intending to protect the public interest (meeting a social need) which was in the form of avoiding disturbance of the students or preventing the risk of impairment of educational order. It is therefore admitted that even a formal breach of the order would lead to disturbance of public order. There is also no need to concretely demonstrate that the impugned act disrupted public order. Otherwise, if running a red light has not caused an accident and has not thereby disrupted public order, no sanction will need to be imposed.

            Therefore, it cannot be said that vesting the legislator by the Constitution as well as the administration by laws with an authority to prohibit issuing press statements at educational institutions where the right to education is exercised and qualifying the failure to abide by this prohibition as a misdemeanour which requires imposition of an administrative fine do not meet a social need and are not necessary in a democratic society. Nor can it be said that imposition of fine on the applicant did not meet a social need and was not necessary in a democratic society on the ground that the police report in the present case had contained no assessment as to the fact that the impugned press release had foreseeably caused delay in certain activities or disrupted public order (Although in the case of Akarsubaşı v. Turkey, which may be deemed to be similar to the present case, the European Court of Human Rights (the ECtHR) found a violation. However, there are significant differences between that case and the present one. In the case of Akarsubaşı, an administrative fine was imposed, pursuant to Article 32 of the Misdemeanour Law no. 5326, on the applicant, who was a civil servant and also a member of the union confederation and who merely attended the demonstration which was held by a union on the stairs of the entrance of a courthouse (not at an educational institution) and where a press statement was issued for the establishment of a kindergarten at their institution (the applicant was not involved in the organization of the demonstration and did not read out the press statement), which was in breach of the order properly issued by the Governor’s Office concerning the places where no press statement would be issued. The applicant’s challenge against the fine was dismissed. Thereafter, the applicant lodged an application with the ECtHR which reiterated that States were liable not only to protect the right to peaceful meeting but also to abstain from imposing indirect and unlawful restrictions on this right. It further pointed out the peaceful nature of the press statement and noted that in interfering with a peaceful demonstration, the public authorities had to strike the balance between the right to a peaceful demonstration and the local authorities’ right to protect public order. The ECtHR indicated that the first instance court failed to strike such balance and to consider the aim and peaceful nature of the demonstration. It concluded that imposition of fine on the applicant merely for attending a demonstration where a press statement had been issued would deter everyone who were members of a labour union from exercising their right to meeting and demonstration safeguarded by Article 11 of the Convention for the fear of being punished. It accordingly concluded that as it could not be demonstrated with relevant and sufficient grounds that the interference allowed by Article 32 of Law no. 5326 had met “a pressing social need”, the fine imposed on the applicant could not be found “necessary in a democratic society” within the meaning of Article 11 of the Convention.).

            Under these circumstances, it must be assessed whether the fine imposed on the applicant union (the interference with the right to union) was proportionate.

            In the present case, an administrative fine of 182 Turkish liras, which is not a significant amount, was imposed on the applicant union on 6 August 2013 for having breached the order issued for the protection of public interest which might be defined as the elimination of the disturbance likely to be caused to the students and the risk of impairment of educational order due to issuing a press statement at the educational institutions. The punishment cannot be said to be disproportionate when the public interest sought to be protected by the said order is compared to the amount of the imposed fine. 

            Accordingly, it has been concluded in the present case that the administrative fine imposed on the applicant was necessary, pursuant to Article 51 § 2 of the Constitution, for maintaining order in an educational institution and did not upset the balance to be struck between the measures deemed necessary for attaining the legitimate aims specified therein and the applicant union’s rights safeguarded thereunder. 

            Therefore, as we consider that there was no breach of the right to union safeguarded by Article 51 of the Constitution, we disagree with the majority’s conclusion to the contrary.