Individual Application

The Facts

At the time of the events, the applicant Nureddin Şimşek was a member of the Board of Directors and branch secretary of the Batman branch of the Education and Science Laborers Union, and the applicants Deniz Topkan and Cihan Tüzün were, respectively, co-chairman and member of the Board of Directors of the Batman branch of the Health and Social Services Laborers Union.

The Governor's Office of Batman (the Governorship) has decided that, due to the terrorist attacks that have been escalating in the city for some time, meetings and demonstration marches that are to take place in the city centre for a period of fourteen days must be permitted by the local administrative 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 November 2018 and 9 November 2018 should apply to the Office of the Ombudsman with a request for the dissolution of the Commission for The Examination of Proceedings Under the State of Emergency and their reinstatement. In line with KESK's decision, the applicants took part in a collective faxing protest to the Ombudsman Institution in front of the PTT (Post, Telegraph and Telephone Administration) headquarters in the centre of Batman. The applicants, who had not obtained a permit from the local administrative authority prior to executing their action, were sentenced to an administrative fine of TL 259 each on the grounds that they had committed the offence of violating the order stipulated in Article 32 of Misdemeanours Law No. 5326. The appeal lodged by the applicants against the administrative fines was rejected by the Criminal Court of Peace.

The Applicants’ Allegations

The applicants maintained that the imposition of administrative fines on the basis of their participation in the meeting by disregarding the decision of the public authority to authorise meetings and demonstrations violated their right to hold meetings and demonstration marches.

The Court’s Assessment

The phrase "the letter of the Constitution" in Article 13 of the Constitution refers to the text, that is the wording of the Constitution. The requirement that any interference with fundamental rights and freedoms be carried out in conformity with the letter of the Constitution becomes particularly relevant in the case of additional safeguards put forward through different Constitutional provisions. Most of the time, the Constitution not only recognizes a right or freedom, but also emphasizes specific features of it to ensure that it is practiced, or preserves it by highlighting specific elements. In addition to recognizing a right, the constitutional legislator may be enabled to give separate and explicit expression to a dimension of that right which falls within the scope of norms, and to introduce a further safeguard in this regard. In this context, restrictions on the rights and freedoms regulated in various provisions of the Constitution that are incompatible with the safeguards provided in addition to those stipulated in Article 13 of the Constitution would be in contradiction with the letter of the Constitution.

Article 34 of the Constitution, which stipulates that the right to hold meetings and demonstration marches cannot be made subject to obtaining a permit, is specifically safeguarded by the Constitution. As a result, a restriction that violates the positive guarantee for exercising the aforementioned right without permission would, in principle, be contrary to the letter of the Constitution, even though it is based on the restrictive grounds in the provision regulating the relevant fundamental right in the Constitution.

In fact, in its constitutionality review, the Constitutional Court found Article 10 of the Law No. 2911 on Meetings and Demonstration Marches, which stipulates that a notification must be provided beforehand so that the meeting and demonstration march can be held, to be in accordance with the Constitution, on the grounds that in the notification system, it is sufficient to notify the competent authority in order to hold meetings and demonstration marches and the approval of the competent authority is not sought; therefore, the regulation stipulating a notification system is not contrary to the guarantee of non-permission under the Constitution.

The Court held that, in addition to the restrictions laid down in Article 13 of the Constitution, restrictions that does not comply with the safeguard provided in Article 34 of the Constitution that the right cannot be made subject to permission are contrary to the letter of the Constitution.

Accordingly, in the present case, it was concluded that the fact that the public authority requires the permission of the local administrative authority for all actions and activities is in contradiction with the additional safeguard laid down in Article 34(1) of the Constitution and is contrary to the letter of the Constitutional provision.

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