Events
In 2016, there were intense debates on the transition to a presidential system of government and as a result of these debates, a draft constitutional amendment was prepared. The part of the draft text that attracted the most attention and was high on the public agenda was the articles regarding the change in the government system. With the said draft, the abolition of the office of the prime minister and the definition of the duties and powers of the President were rearranged, and the new system was named as the “Presidential government system”. Law No. 6771, which was adopted by the General Assembly of the Grand National Assembly of Turkey, was submitted to the referendum on 16/4/2017 in accordance with the provisions of Law No. 3376 on the Submission of Constitutional Amendments to the Referendum.
Some professional organisations including the Turkish Dental Association (TDB) made a joint press statement on 24/3/2017. The applicant, who was the chairman of the board of directors of TDB at the time of the events, also made a speech and shared his views. With the decision of the Chief Public Prosecutor’s Office Administrative Sanctions Office, an administrative fine was imposed on the applicant pursuant to Law No. 5326 on Misdemeanours. The applicant objected to the administrative fine and 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 him for the opinions he expressed in his press announcement violated his freedom of expression.
Assessment of the Court
In the concrete case, according to the decision of the chief public prosecutor’s office, the administrative fine imposed on the applicant was based on Article 35 of the Law No. 3224 on the Turkish Dental Association, and according to the decision of the criminal judgeship of peace that examined the objection, the administrative fine imposed on the applicant was based on Article 32 of the Law No. 5326 with reference to Article 156 of the Law No. 298 on the Basic Provisions of Elections and Voter Registers. In this context, in the concrete case, it has been evaluated whether the intervention made on the basis of the relevant articles of law and Article 32 of Law No. 5326 meets the requirement of legality.
Pursuant to Article 32 of Law No. 5326, in order for an administrative sanction decision to be applied, the existence of a previously announced order and the behaviour of persons contrary to this order must be determined. The Law No. 3224 referred to by the Chief Public Prosecutor’s Office does not refer to the Law No. 5326, nor is there a previously announced order.
When the decision of the criminal court of peace is examined, “other propaganda” provision in Article 156 of the Law No. 298 is taken as the ground for penalising the applicant. In the decision regarding the administrative fine, the applicant’s action in the form of a press statement was evaluated within the scope of false propaganda. At this point, the issue to be examined is whether the applicant’s press statement can be evaluated within the scope of Law No. 298.
The principles of the election propaganda process in Turkish electoral law are listed in detail between Articles 49 and 66 of Law No. 298. However, the Law does not include a definition of what propaganda is. Again, there is no determination in the Law as to who will carry out the propaganda. Only in the preamble of Article 49 of the Law No. 298, it is seen that a limitation is drawn in terms of the person, although it is not descriptive, by stating “the periods of propaganda pertaining to political parties and independent candidates”. In this context, considering both the basic characteristics of elections and the purposes of propaganda activities, it is understood that the regulations in question are generally aimed at political parties and candidates. On the contrary, the statement made by the applicant, who is neither a political party representative nor a candidate, was considered as a misdemeanour by the Attorney General’s Office and the Court of First Instance. Moreover, pursuant to Article 32 of Law No. 5326, a violation of a duly issued order can only be penalised if there is an explicit provision in the relevant law. However, there is no determination made by either the chief public prosecutor’s office or the criminal judgeship of peace regarding this issue.
The Constitutional Court decided that the freedom of expression was violated for the reasons explained.
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