Individual Application

The Facts

The applicant, a sculptor, constructed the impugned monument in Kars, upon the approval of the Regional Board of Conservation of Cultural Heritage (“Board”), on the basis of the contract he executed with the relevant Municipality. Following the construction of the monument, the Board decided to have the structures -in the field where the monument was located- demolished for having obtained “new findings”. Accordingly, the Municipal Council issued an order to demolish the said structures. The applicant obtained a decision on the stay of execution of the order. However, after the decision had been lifted, the Municipality started the demolition work.  The applicant’s action for annulment of the impugned work was dismissed. On the applicant’s appeal, the Council of State ultimately upheld the dismissal decision.

The Applicant’s Allegations

The applicant maintained that his freedom of expression had been violated due to demolition of the monument he had constructed.

The Court’s Assessment

The applicant’s freedom of expression was interfered with due to the demolition of his work of art by virtue of a series of decisions issued by the bodies exercising public authority. The impugned interference will be in breach of the freedom of expression, unless it complies with the conditions set out in Article 13 of the Constitution.

Disputes as to the construction, legal status and demolition of the impugned monument primarily took place among the public institutions.  The failure of the bodies and institutions forming the State to function in harmony with one another cannot be relied on as a ground for justifying an interference with the individuals’ rights and freedoms. Considering that the immovable where the impugned monument was located was declared as a cultural heritage required to be preserved, the Court dealt with the questions as to whether its demolition met a social need and whether it was applied as a measure of last resort.

In the present case, it should have been assessed whether it was possible to preserve the cultural assets on the immovable without having the monument demolished. Besides, it should have been discussed whether the work of art could be transferred to another place without being destroyed, and the applicant in his capacity as the sculptor of the monument should have been consulted to find a common solution. These considerations were included neither in the administrative decisions nor in the judicial decisions issued during the demolition process, which indicates that the State failed to fulfil its positive obligations on the preservation of works of art.

The bodies exercising public authority ignored the freedom of artistic expression enshrined in the Constitution during the period from construction to demolition of the monument. Nor was it demonstrated that the demolition of the impugned monument, which would indeed require more protection than other types of expression, had been necessary in a democratic society and applied as a measure of last resort. It has been therefore concluded that the decisions taken by the administrative bodies and the courts included no relevant and sufficient reasons.

Therefore, it has been concluded that the bodies exercising public power failed to show due diligence in protecting a work of art and thus the freedom of artistic expression which is safeguarded by the Constitution.

Consequently, the Court has found a violation of the freedom of expression safeguarded by Article 26 of the Constitution.