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 on the change in the system of government. With the abolition of the office of the prime minister, the duties and powers of the President were reorganized and the new system was called the “Presidential system of government”. 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 organizations, 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, the applicant was imposed an administrative fine in accordance with Law No. 5326 on Misdemeanors. 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, the administrative fine imposed on the applicant was based on Article 35 of the Law No. 3224 on the Turkish Dental Association according to the decision of the Chief Public Prosecutor’s Office, and 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 according to the decision of the criminal court of peace that examined the objection. 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 determination of people’s behavior contrary to this order is required. Law No. 3224, to which the Chief Public Prosecutor’s Office refers, does not refer to Law No. 5326, nor is there a previously announced order.
When the decision of the criminal court of peace is examined, the applicant was penalized based on the provision on “other propaganda” in Article 156 of Law No. 298. 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.
In Turkish election law, the principles of the election propaganda process 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 propaganda. Only in the preamble of Article 49 of 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 intended for 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 misdemeanor 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 punished if there is a clear 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.
For the reasons explained, the Constitutional Court ruled that the freedom of expression was violated.
You can access our other article examples and petition examples by clicking