25 December 2018 Tuesday

Alişen Bağcaçi (no. 2015/18986, 25 December 2018)

The Facts

A report was issued by the municipal police, indicating that the applicant alleged to have been selling balloons was panhandling. Therefore, the jewellery and cash found on him were seized.

The municipality imposed an administrative fine on the applicant for panhandling. The seized gold and cash were transferred to the State.

The applicant’s appeal against the decision of the municipality was dismissed by the magistrate judge. His appeal against the dismissal decision was also rejected.

The Applicant’s Allegations

The applicant claimed that his right to property was violated, stating that he had legally obtained the items which were transferred to the State.

The Court’s Assessment

There is no hesitation that the Misdemeanours Law no. 5326, which includes provisions regarding panhandling, was clear, foreseeable and accessible. Thus, the alleged interference with the right to property had a legal basis.

There is no doubt that an interference made in order to ensure deterrence in terms of the fight against misdemeanours and to prevent misdemeanours pursues a legitimate aim in the public interest.

Considering that the public authorities are granted discretion to choose the means to be employed in the fight against misdemeanours and that the said sanction was limited only to the items found on the applicant, there has been no reason to depart from the conclusion of the inferior court as regards the necessity of the interference.

The applicant could appeal twice against the decision ordering such transfer to the State, whereby he could submit his defence and evidence. Thus, the applicant could effectively challenge the interference with his right to property.

The inferior court concluded that the applicant had been found to have been panhandling to make money. In the reasoning of the decision rendered upon the applicant’s appeal, it was accepted that the cash and jewellery found on the applicant had been obtained by panhandling. The applicant failed to submit sufficient and concrete evidence proving the contrary, in spite of having sufficient opportunity to do so. Accordingly, the decisions of the inferior courts cannot be said to have been arbitrary or to have included a manifest error of assessment.

As the applicant also failed to submit concrete evidence demonstrating that the items more than those he had obtained by panhandling were seized, the said interference had not been disproportionate.

It was considered that the applicant had been in a position to predict the outcome of the imputed misdemeanour and that the alleged interference had been caused by his own gross fault.

Accordingly, it was concluded that the fair balance to be struck between the applicant’s right to property and the public interest served by the interference had not been impaired and that the alleged interference had been proportionate.

Consequently, the Constitutional Court found no violation of the applicant’s right to property safeguarded by Article 35 of the Constitution.