Events
At the time of the events, the applicant Nureddin Şimşek was a member of the Executive Board and branch secretary of the Batman Branch of the Education and Science Workers’ Union and the applicants Deniz Topkan and Cihan Tüzün were co-chair and Executive Board member, respectively, of the Batman Branch of the Health and Social Service Workers’ Union.
Due to the terrorist attacks in the city, the Governorate of Batman (the Governorate) decided that all meetings and demonstrations in the city center for fourteen days would be subject to the condition of obtaining permission from the local authority. The Confederation of Public Employees’ Trade Unions (KESK), to which the applicants’ trade unions are affiliated, decided that its members who were dismissed from public office between 5/11/2018 and 9/11/2018 should apply to the Ombudsman’s Office with the request that the State of Emergency Inquiry Commission be abolished and that they be reinstated. In accordance with the decision of KESK, the applicants participated in a mass faxing action to the Ombudsman Institution in front of the PTT Head Office in the center of Batman. The applicants, who did not obtain permission from the local administrative authority before the protest, were sentenced to an administrative fine of 259 TL each on the grounds that they committed the misdemeanor of violating the order stipulated in Article 32 of the Law on Misdemeanors No. 5326. The applicants’ objection to the administrative fines was rejected by the criminal court of peace.
Allegations
The applicants claimed that the imposition of administrative fines on the grounds that they had participated in the meeting by disobeying the public authority’s decision to require a permit for meetings and demonstrations violated their right to organize meetings and demonstrations.
The Court’s Assessment
The expression “the word of the Constitution” in Article 13 of the Constitution refers to the text, i.e. the letter of the Constitution. The requirement that interferences with fundamental rights and freedoms must be in conformity with the letter of the Constitution is particularly important in the case of additional guarantees introduced by various articles of the Constitution. In most cases, the Constitution does not only recognize a right or freedom, but also emphasizes certain aspects of it or protects it by attributing a certain importance to certain aspects in order to guarantee its exercise. In addition to recognizing a right, it may also be possible for the constitutional legislator to express separately and specifically a dimension of that right that falls within the sphere of norms and to provide an additional guarantee in this regard. In this context, limitations on the rights and freedoms regulated in various articles of the Constitution that are incompatible with the guarantees introduced in addition to those specified in Article 13 of the Constitution will be contrary to the wording of the Constitution.
The guarantee that the right to organize meetings and demonstrations under Article 34 of the Constitution cannot be conditional on obtaining permission is specifically protected in the Constitution. Therefore, a restriction that violates the positive guarantee for the exercise of the said right without permission will, as a rule, be contrary to the word of the Constitution, even if it is based on the grounds for restriction in the article regulating the relevant fundamental right in the Constitution.
As a matter of fact, the Constitutional Court, in its norm review, found Article 10 of the Law No. 2911 on Meetings and Demonstration Marches, which stipulates that a notification must be given before a meeting and demonstration march can be held, to be in conformity with the Constitution, on the grounds that in the notification system, it is sufficient to notify the competent authority in order to hold a meeting and demonstration march and that the approval of the competent authority is not sought; therefore, the regulation stipulating a notification system is not contrary to the guarantee of non-permissibility provided by the Constitution. In its decision, the Constitutional Court stated that, in addition to those stated in Article 13 of the Constitution, limitations contrary to the guarantee that the right cannot be subject to authorization in Article 34 of the Constitution would be contrary to the word of the Constitution.
As a result, in the concrete case, it has been concluded that the public authority’s binding all actions and activities to the permission of the local administrative chief is contrary to the additional guarantee in the first paragraph of Article 34 of the Constitution and contradicts the wording of the Constitutional article.
For the reasons explained above, the Constitutional Court ruled that the right to organize meetings and demonstrations was violated.
You can access our other article examples and petition examples by clicking