Violation Of The Freedom Of Association As A Result Of The Imposition Of An Administrative Fine On The Grounds Of Engaging In Unlicensed Travel Agency Activities
Events
The members of the association, including the applicant, organised a sportive trip and walk in a tunnel. During the inspections carried out in the region during this excursion and hiking activity, it was determined that the association did not have a travel agency operating certificate. Thereupon, the administration imposed an administrative fine on the applicant in accordance with the Law No. 1618 on Travel Agencies and the Association of Travel Agencies on the grounds that the applicant was carrying out illegal travel agency activities.
The applicant objected to the administrative fine; the judgeship that examined the objection rejected the applicant’s objection on the grounds that the applicant organised package tours with the decision of the association, that associations do not have such authority, that it is obligatory to have an operating certificate to organise package tours, but the association in question does not have an operating certificate. The applicant also objected to the aforementioned decision; the criminal judgeship of peace, which examined the objection, rejected the applicant’s objection definitively.
Allegations
The applicant claimed that the imposition of an administrative fine on the grounds that the association of which he was the president was engaged in travel agency activities without a business certificate violated his freedom of association.
The Court’s Assessment
Freedom of association refers to the freedom of individuals to come together in a collective organisation representing themselves in order to protect their interests. The right of association, which is a form or a special aspect of freedom of association, includes not only the freedom to form an association, but also the right to become a member of an association, to participate in its activities and to carry out activities to protect the interests of its members. Associations, on the other hand, are organised groups of persons equipped with legal personality, in which individuals combine their knowledge and efforts on a permanent basis for the realisation or pursuit of a specific objective. Article 33 of the Constitution basically aims to protect against arbitrary interference by public authorities in the exercise of the right to association.
However, the restriction on association must be of an exceptional nature and aimed at meeting a compelling social need in a democratic society, such as the protection of public order. In order for the measure constituting the intervention to be considered to meet a compelling social need, it must be suitable for achieving the objective and must be the last resort and the least severe measure that can be taken.
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On the other hand, administrative authorities may intervene in the activities of an association with the authorisation they receive from the law. However, every public power action and procedure that constitutes an intervention without relevant and sufficient justification by the organs exercising public power may violate fundamental rights and freedoms.
In the concrete case, a trip organised by the members of the association was considered as a commercial activity by the public authorities and administrative sanctions were imposed on the applicant, who is the president of the association. It is clear that the administrative decision in question is aimed at preventing the disruption of public order and preventing violations of the law.
However, the Inspection Report only states that the trip in question was organised without a business certificate. On the other hand, only the relevant article of the law is included in the administrative sanction decision.Neither in the Inspection Report nor in the administrative sanction decision, there is no evaluation of the issues such as how the excursion activity in question falls within the scope of commercial package tours, what status the participants of the excursion have (whether they are members of the association), what status the association has (whether it is exempt from the relevant laws), and how the commercial activity is carried out.
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In the most general terms, the administration failed to show how the concrete action violated the relevant article of law. In its assessment, the court of first instance rejected the objection, stating only that the applicant organised package tours with the decision of the association, but that associations do not have such an authorisation and that the association in question did not have a business certificate.
Neither the administration nor the courts of first instance took into consideration the applicant’s allegations, the documents on which they were based, the Regulation on Sportive Activities for Tourism Purposes published in the Official Gazette No. 27855, the provisions of the federation and association bylaws. It cannot be said that it has been demonstrated with relevant and sufficient grounds that an excursion carried out by the applicant association, whose purpose of establishment is to spread nature sports among its members and to organise cultural excursions, within the framework of its bylaws, constitutes a violation of the provisions of the relevant law, and therefore that the administrative fine imposed on the applicant corresponds to a compelling social need. Therefore, it is concluded that the administrative fine imposed on the applicant is not in accordance with the requirements of the democratic social order.
For the reasons explained above, the Constitutional Court decided that the freedom of association was violated.
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