Events
The applicant was the chairman of the Board of Directors of the Union of Chambers of Turkish Engineers and Architects (TMMOB) at the time of the events. An administrative fine was imposed on the applicant pursuant to Article 32 of the Law on Misdemeanours No. 5326 due to some publications published on the website of TMMOB containing opinions on the constitutional amendment. The applicant objected to the administrative fine in question; the criminal court of peace, which examined the objection, rejected the applicant’s objection definitively.
Allegations
Applicant claimed that the imposition of an administrative fine on him for his opinions published on a website violated his freedom of expression.
The Court’s Assessment
The concrete manifestation of the Supreme Electoral Board’s (SBE) authority to take decisions during the election period in the present application is the decision no. 109 taken in relation to the referendum held on 16/4/2017. With the aforementioned decision, the SBE specified the procedures and principles to be followed from the beginning to the end of the propaganda period. Article 1/D of the conclusion part of the decision regulates the procedures and principles of propaganda in the press and on the internet. It is understood that this regulation is based on Article 55/B of the Law No. 298 on the Basic Provisions of Elections and Voter Registers.
In the administrative sanction decision imposed on the applicant, it was stated that an administrative fine was imposed on the applicant only on the basis of Article 1/D of the SBE decision no. 109, which states that propaganda in the press and on the internet can be made by political parties, and that it is not stated that persons and institutions other than political parties can make propaganda. The judge who examined the objection decided that the administrative sanction decision was in accordance with the procedure and the law without further explanation.
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In the administrative sanction decision in question; it is seen that the applicant was penalised based on the interpretation that the relevant article of a rule is based on the opposite of the meaning, as a matter of fact, the article in question contains a regulation stating that political parties can make propaganda and that no person or institution other than political parties can make propaganda based on this regulation. However, considering that the main actors of election propaganda are political parties and candidates, it is clear that the decision of the SBE and Article 55 of Law No. 298, which is the basis of this decision, are directed towards political parties.
The aforementioned article does not contain any meaning that no person or organisation other than political parties can make political propaganda, and an interpretation in this direction cannot be said to be in accordance with the electoral law and the purpose and content of the said article. Such an assumption would mean that persons and organisations other than political parties cannot express their thoughts and opinions during election periods. Undoubtedly, the principle of conducting elections in a democratic environment will be realised through the expression and discussion of the thoughts and opinions of all segments of the society. In this context, the decision of the SBE is related to the procedures and principles to be followed by political parties, which are the main actors of the elections, and does not contain a prohibitive provision for persons other than political parties.
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In the present case, considering the justifications of the attorney general’s office and the court of first instance, it is understood that the opinions on TMMOB’s website were based on the basis that they were outside the scope of the relevant SBE decision since they were not made by a political party, but the attorney general’s office and the courts of first instance erred in the application of the relevant decision and imposed an administrative fine on the applicant for an action that did not fall within the scope of Article 1/D of the SBE decision in question. Moreover, neither the public prosecutor’s office nor the court of first instance was able to show a legal regulation that would authorise the intervention against the applicant’s action.
Moreover, pursuant to Article 32 of Law No. 5326, a violation of a duly issued order can only be penalised if there is a clear provision in the relevant law. However, neither the chief public prosecutor’s office nor the court of first instance has made a determination on this matter.
In the concrete case, it cannot be said that the intervention to the expression of opinion based on a provision introduced in respect of political parties has a legal basis in terms of freedom of expression. As a result, it is concluded that the interference to the applicant’s freedom of expression is not foreseen by law.
The Constitutional Court decided that the freedom of expression was violated for the reasons explained.
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