Individual Application

The Facts

At the material time, the applicant was the Chairman of the Union of Chambers of Turkish Engineers and Architects (TMMOB). He was imposed an administrative fine pursuant to Article 32 of the Misdemeanour Law no. 5326 due to some expressions on the website of the TMMOB regarding constitutional amendment. The applicant challenged the impugned administrative fine; however, his challenge was dismissed by the magistrate judge with no right of appeal.

The Applicant’s Allegations

The applicant claimed that his freedom of expression had been violated due to imposition of an administrative fine for his expressions on a website.

The Court’s Assessment

In the present case, the concrete manifestation of the Supreme Election Council’s (YSK) authority to make decisions during the electoral period is its Decision no. 109 regarding the referendum of 16 April 2017. In the relevant decision, the YSK set forth the procedures and principles to be followed during the propaganda period. Article 1/D of the conclusion part of the decision concerned the procedures and principles of the propaganda in the press and on the internet. It appears that the said regulation relied on Article 55/B of the Law no. 298 on Basic Provisions of Elections and Voter Registers.

It was specified in the administrative decision against the applicant that pursuant to Article 1/D of the YSK’s Decision no. 109, a propaganda in the press and on the internet could be made only by political parties, and it was not specified that persons and institutions other than political parties could make a propaganda; therefore, an administrative fine was imposed on the applicant. The incumbent magistrate judge held that the contested administrative decision complied with the procedure and the law.

It appears that in the relevant administrative decision, a contrario interpretation of a given provision was relied on, since it contained a clause allowing for political parties to make propaganda. Thus, it was inferred from the said provision that no person or organisation, save for political parties, could make propaganda. Hence, the applicant was imposed an administrative fine. In fact, considering that the main actors of election propagandas are political parties and candidates, it is obvious that the relevant decision of the YSK as well as Article 55 of Law no. 298 underlying the said decision concerned political parties. The aforementioned provision contains no clause indicating that no person or organisation other than political parties can make political propaganda, and such an interpretation cannot be said to be in accordance with the electoral law as well as the legislative intent and content of the relevant provision. Such an assumption means that during election periods, persons and organisations, save for political parties, cannot express their thoughts and opinions regarding elections. Undoubtedly, the principle of conducting elections in a democratic way shall be achieved through the expression and discussion of the thoughts and opinions of all segments of the society. In this regard, the YSK’s decision was related to the procedures and principles to be followed by political parties that are the main actors of elections, and contained no prohibitive provisions concerning those other than political parties.

In the present case, in consideration of the grounds relied on by the chief public prosecutor’s office and inferior court, it has been understood that the expressions on the TMMOB’s website had been considered by the incumbent authorities to fall outside the scope of the YSK’s decision as not having been uttered by a political party; however, that the chief public prosecutor’s office as well as the inferior court misinterpreted the relevant decision and imposed an administrative fine on the applicant for committing an action not falling within the scope of Article 1/D of the said decision of the YSK. Moreover, neither the chief public prosecutor’s office nor the inferior court referred to a regulation allowing for an interference with the applicant’s impugned action. Besides, pursuant to Article 32 of Law no. 5326, any violation of a duly issued order can only be punished if it is explicitly prescribed by the relevant law. However, neither the chief public prosecutor's office nor the inferior court reached any finding in this regard.

In the present case, the interference with the expression of opinion, which had been made relying on a provision concerning political parties did not have any legal basis in terms of the freedom of expression. It has therefore been concluded that the interference with the applicant’s freedom of expression was not prescribed by the law.

Consequently, the Court has found a violation of the freedom of expression.