05 SEP VIOLATION OF FREEDOM OF EXPRESSION DUE TO UNINTENDED INTERVENTION
Posted at 16:28h in Judicial Decisions by Barış kaya 0 Comments
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Alanya Lawyer
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 in accordance with Article 32 of the Misdemeanor Law No. The applicant objected to the said administrative fine; The Criminal Judgeship of Peace, which examined the objection, definitively rejected the applicant’s objection.
allegations
The applicant claimed that imposing an administrative fine on him for his views published on a website violated his freedom of expression.
Court’s Evaluation
The concrete appearance of the Supreme Election Council’s (YSK) decision-making authority during the election period in the present application is the decision numbered 109 regarding the popular vote dated 16/4/2017. With the said decision, YSK specified the procedures and principles that must be followed from the beginning of the propaganda period to the end. Article 1/D of the conclusion part of the decision regulates the procedures and principles of propaganda on the media and the Internet. It is understood that this regulation is based on Article 55/B of the Law No. 298 on Basic Provisions of Elections and Voter Registers.
In the administrative sanction decision imposed on the applicant, it was stated that only in accordance with Article 1/D of the YSK decision no. The judgeship, which examined the objection, decided that the administrative sanction decision was in accordance with the procedure and the law, without further explanation.
In the said administrative sanction decision; it is seen that the relevant article of a rule is based on the notion that it is opposed, as a matter of fact, the applicant was punished on the interpretation that the article in question contains a regulation 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 YSK decision in question and Article 55 of the Law No. The aforementioned article does not imply that any person or institution other than political parties can make political propaganda, and it cannot be said that an interpretation made in this direction is in accordance with the election law and the purpose and content of the said article. Such an assumption means that individuals and institutions other than political parties cannot express their thoughts and opinions regarding the election during election periods. Undoubtedly, the principle of conducting the elections in a democratic environment will be realized through the explanation and discussion of the thoughts and opinions of all segments of the society. In this context, the YSK decision is about the procedures and principles to be followed by the political parties, which are the main actors of the elections, and does not contain a prohibitive provision for persons other than political parties.
Considering the reasons of the Attorney General and the court of instance in the present case, it is assumed that the views on the website of TMMOB are outside the scope of the relevant YSK decision simply because they are not made by a political party. It is understood that an administrative fine was imposed on the applicant due to an action that does not fall within the scope of the article. Moreover, neither the Chief Public Prosecutor’s Office nor the court of instance could show a legal regulation that would allow interference with the applicant’s action. Moreover, in accordance with Article 32 of Law No. 5326, violation of a duly given order can only be punished if there is a clear provision in the relevant law. However, neither the Chief Public Prosecutor’s Office nor the court of instance has made a determination regarding this issue.
It cannot be said that the interference in the statement of opinion made in the instant case, based on a decision made by political parties, has a legal basis in terms of freedom of expression. As a result, it was concluded that the interference with the applicant’s freedom of expression was not prescribed by law.
The Constitutional Court decided that the freedom of expression had been violated for the reasons explained.
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