Individual Application

The Facts

The applicants attended meetings in Ankara at various dates with a view to protesting their dismissal from public office or, in general, the dismissals and the measures taken under the state of emergency, or to standing up for S.Ö, a former teacher, and N.G., a former academician, who had embarked on a hunger strike for being dismissed from their offices.

The Ankara Governor’s Office decided, as a measure of the state of emergency, to ban the assemblies or to make them subject to permission. The applicants were subject to administrative fines for acting in breach of an order issued by the relevant authority, pursuant to Article 32 of the Misdemeanour Law no. 5326, as they had attained meetings at various dates within the period from the end of 2016 to the midst of 2018. The applicants’ challenges to the administrative fines imposed on them were dismissed, with no right of appeal, by the incumbent magistrate judge as the impugned fines were compatible with the procedure and the law.

The Applicants’ Allegations

The applicants claimed that their right to hold meetings and demonstration marches had been violated on account of the administrative fines imposed on them for having acted in breach of the order, as they had participated in various meetings.

The Court’s Assessment

During the state of emergency declared following the coup attempt of 15 July 2016, to hold meetings and demonstration marches was banned pursuant to Article 11 (m) of Law no. 2935 –throughout the province of Ankara save for the decisions to ban dated 3 July 2017 and 24 May 2017, and for 24 hours save for the decision to ban dated 24 May 2017. It was then made contingent upon permission of the relevant authority pursuant to the decision of 21 January 2018. Despite the less restrictive measures embodied in the same Law, such as the adjournment of the meetings, making them contingent upon permission, or designation by the relevant authority of a certain place and time for the meetings, the administration opted for imposing a blanket ban with respect to all meetings and demonstrations for a long period of time during the state of emergency (a total of approximately 11 months during the state of emergency lasting 2 years where the ban remained in force uninterruptedly for 8 months).

It is a known fact that Türkiye has faced various risks of terrorism apart from the period of the state of emergency. That is because it has been affected directly and immediately by the activities conducted by the terrorist organisations in the neighbouring countries. Therefore, the interferences of continuous nature with fundamental rights, effectuated not in consideration of the material facts but merely on the ground of the risk of terrorism prevailing in the country, pose the risk of impairing the very essence of the rights. Besides, in the impugned decisions to ban, the administration referred, as a ground, to the acts of supporting S.Ö. and N.G. and the disorder caused by such acts, as well as to the nuisance caused by the protests with loud noise at places such as parks and gardens where citizens mainly preferred spending time, whereas it referred to the risk of terrorism in abstracto. This caused doubt on the acknowledgment that the administration, in exercising its discretionary power, focused on a concrete risk of terrorism.

Unlike the other decisions to ban issued by the Ankara Governor’s Office, which are subject-matter of the present application, the decision to ban, dated 30 August 2017, is not available on its official website. In that case, the administrative fines imposed pursuant to the decision of 30 August 2017, which was issued by the Ankara Governor’s Office but was not duly announced to the public, unlike the other impugned decisions to ban, cannot be said to be compatible with the requirements of a democratic society. This consideration, which set aside the certainty and foreseeability, may lead the administration to act in an arbitrary fashion.

As regards the decision of the Ankara Governor’s Office, dated 21 January 2018, whereby to hold meetings and demonstration marches was made contingent upon its permission, no specific time-period was indicated, as different from the other impugned decisions to ban. The period during which the decision would remain in force and the date when it would expire were predicated on a military operation conducted abroad that was an issue completely at the administration’s discretion and could not be foreseeable by individuals. It is evident that such a determination, which was quite far from ensuring certainty and foreseeability, would bring into question arbitrariness on the part of the administration. Therefore, it has been considered that the administrative fines imposed pursuant to the decision of the Ankara Governor’s Office, which was dated 21 January 2018 and expiry of which was made contingent upon the termination of the military operation being conducted, were not compatible with the requirements of a democratic society, either.

As regards Article 15 of the Constitution

Through its impugned decisions, the Ankara Governor’s Office imposed a burden that caused the same effect with that of the decisions imposing categorical bans for an indefinite period of time, with respect to the right to hold meetings and demonstration marches. In doing so, the Governor’s Office, however, failed to demonstrate that this burden imposed on the applicants, who have been dismissed from their offices pursuant to the measures taken under the state of emergency or who are relatives of such persons and who have aimed to make their voices heard by the authorities or tried to find supporters for their views, was overridden by the threat posed to the public order. Besides, the administration resorted to the severest measure prescribed in the relevant Law, without demonstrating that taking more lenient measures, for striking a fair balance between the conflicting interests in the present case, would be insufficient. Nor was it found established that any acts of violence had taken place during these meetings. The Court has thus considered that the decision of 30 August 2017, which was not announced to the public, and the decision of 21 January 2018, which would remain in force until the end of a military operation, completely hindered the foreseeability and might thus lead to arbitrariness. It has accordingly concluded that the impugned decisions that might give rise to arbitrary practices were not to the extent strictly required by the exigencies of the state of emergency.

Consequently, the Court has found a violation of the right to hold meetings and demonstration marches.