Events
The applicants attended meetings in Ankara on various dates to protest against their own dismissals from public office or dismissals in general and the State of Emergency-era practices, or to support former teacher S.Ö. and former academic N.G., who had gone on hunger strike as a result of their dismissals.
As a state of emergency measure, the Governorate of Ankara issued decisions banning or authorising meetings across the province. Administrative fines were imposed on the applicants for violating the order pursuant to Article 32 of the Law on Misdemeanours No. 5326 for attending the meetings in question on various dates, starting from the end of 2016 until mid-2018. The applicants’ objections to the administrative fines imposed on them were definitively rejected by the criminal judgeship of peace on the grounds that the administrative fines were in accordance with the procedure and the law.
Allegations
The applicants claimed that their right to organise meetings and demonstration marches was violated due to the imposition of administrative fines against them for participating in various meetings on the grounds that they acted contrary to the order.
The Court’s Assessment
In the concrete case, during the state of emergency declared following the attempted coup d’état on 15 July 2016, meetings and demonstrations were banned in accordance with subparagraph (m) of Article 11 of the Law No. 2935 – in the whole of Ankara except for the banning decisions dated 3/7/2017 and 24/5/2017 and for 24 hours except for the banning decision dated 24/5/2017 – and were subject to permission in accordance with the decision dated 21/1/2018. Although the aforementioned Law also provides for less restrictive measures such as postponement, permission or indication of time and place for meetings, the administration used its discretion in favour of banning all meetings and demonstrations for a long period of time during the state of emergency (approximately 11 months in total, 8 months of which were uninterrupted during the 2-year state of emergency).
It is a fact that our country is under many different terrorist threats even outside the state of emergency. Our country is also primarily affected by the activities of terrorist organisations in neighbouring countries. For this very reason, continuous interventions to be made to fundamental rights based solely on the grounds that there is a terrorist threat in our country, without acting on concrete facts, carry the danger of eliminating the essence of the right. Moreover, the fact that most of the banning decisions subject to the application mention the demonstration in support of S.Ö. and N.G. and the disturbance caused by this demonstration, and that some of them mention the disturbance caused to the environment due to loud protests in areas such as parks or gardens, which are preferred by citizens, while the threat of terrorism is mentioned abstractly creates doubt that the administration focused on any concrete terrorist threat while exercising its discretionary power.
Unlike the other banning decisions of the Governorate of Ankara, the banning decision dated 30/8/2017 is not available on the website of the Governorate. In this case, unlike the other banning decisions subject to the application, it cannot be said that the administrative fines imposed on the basis of the banning decision dated 30/8/2017, which the Governorate of Ankara did not properly announce to the public, are in accordance with the requirements of the democratic social order. As a matter of fact, this situation, which eliminates certainty and predictability, may pave the way for the administration to act arbitrarily.
In the decision of the Ankara Governorate dated 21/1/2018, unlike the other banning decisions subject to the application, no time period was specified; the validity period of the decision was linked to a military operation carried out abroad, the expiry of which is entirely within the discretionary power of the administration and has no foreseeability by individuals. It is obvious that such a determination, which is far from certainty and predictability, will bring the arbitrariness of the administration to the agenda. For this reason, the administrative fines imposed pursuant to the decision of the Governorate of Ankara dated 21/1/2018, the validity of which was linked to the end of the military operation, were also considered to be incompatible with the requirements of the democratic social order for this reason.
Evaluation in terms of Article 15 of the Constitution
The Ankara Governorate created a burden on the right of individuals to organise meetings and demonstrations with the banning decisions in the subject matter of the application, which has the same effect as categorical banning decisions with an indefinite duration; on the other hand, it has not shown in any way that the danger to public order outweighs this burden created for the applicants, who lost their jobs within the framework of the state of emergency measures or are their relatives and who are trying to make their voices heard to those concerned or who are trying to find stakeholders for their opinions.
Moreover, the administration has resorted to the most severe measure provided for in the relevant Law without demonstrating in any way that lighter measures would be insufficient to establish a fair balance between competing values in the case in question. In addition, it has not been established that any violence took place during the meetings subject to the application. It is assessed that the prohibition decision dated 30/8/2017, which was not announced to the public, and the authorisation decision dated 21/1/2018, the validity of which was determined as the end of a military operation, completely eliminated foreseeability and therefore may lead to arbitrariness. It is concluded that these decisions, which may lead to arbitrary practices, are in no way to the extent required by the state of emergency in the concrete case.
For the reasons explained above, the Constitutional Court decided that the right to organise meetings and demonstrations was violated.
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