Individual Application

The Facts

Members of the association including the applicant organized an excursion and trekking in a tunnel as an exercise. In the inspection conducted around the region during the said excursion and trekking tour, it was found that the travel agency had not possessed an operation licence. Subsequently, the administration imposed an administrative fine on the applicant for operating an illegal travel agency pursuant to Law No. 1618 on Travel Agencies and the Association of Travel Agencies.

The applicant challenged the administrative fine and the incumbent judgeship dismissed the objection of the applicant on the grounds that the applicant had organized a package tour in line with the association decision; however, associations did not possess such authority since operation licences were required in order to organize package tours, yet the applicant’s association did not possess such a licence. The applicant also appealed the decision of the judgeship and this appeal was dismissed by the Magistrates’ Court as final.

The Applicants’ Allegations

The applicant claimed that his freedom of organisation was violated due to the administrative fine imposed on him for engaging in travel activities through the association, of which he was president without having an operation licence.

The Court’s Assessment

Freedom of organisation refers to the freedom of individuals to gather together as a collective entity that represents them with the aim of protecting their own interests. Being one of the forms and a special aspect of the freedom of organisation, the right to form an association includes not only individuals’ right to form an association but also the right to become a member of an association, to participate in its activities and to engage in activities to protect the interests of its members. Associations are defined as individual communities with legal personality formed by the continuous provision of individuals’ knowledge and efforts in the pursuit of a certain aim. The main purpose of Article 33 is to protect individuals against arbitrary interference of public authorities with the exercise of the right to association.

Nevertheless, the limitations imposed on the freedom of organisation should carry a legitimate aim of addressing a pressing social need such as ensuring public order and must be of an exceptional nature. In order for an interfering measure to be considered as corresponding to a pressing social need, it must be appropriate for the aim pursued, be the most lenient measure and must be used as a last resort.

Additionally, the administrative authorities may interfere with the activities of the associations based on the authority entitled to them by the law. However, the act and proceeding constituting an interference and carried out by the public authority without presenting relevant and sufficient grounds for, may be in breach of fundamental rights and freedoms.

In the present case, an excursion organized by the members of the association was evaluated as a commercial activity by the public authorities and as a result, an administrative sanction was imposed on the applicant as the president of the association. It is clear that the impugned administrative sanction carries the aim of preventing the disruption of public order and of avoiding violations of law. Furthermore, the inspection report in question only noted that the excursion was organized without an operation licence while the decision on the administrative sanction only referred to relevant statutory articles. Neither the inspection report nor the decision on administrative sanction included assessments as to which aspects of the impugned excursion fall within the scope of the commercial package tour; the status of the participants (whether they are members of the association); the status of the association (whether it was exempt from the relevant laws); and how it carried out the commercial activity. In general, the administration failed to show how the impugned action violated the relevant article of law. The incumbent instance court dismissed the challenge of the applicant, assessing that the applicant organized a package tour in line with the decision of the association, but that associations do not have such authorization and that it did not have an operating certificate without any further explanations.

Neither the administration nor the instance courts have regard to the applicant’s allegations, the documents he relied on; and the Regulation on Sportive Activities for Tourism Purposes promulgated in the Official Gazette No. 27855, which was referred by the applicant and regulates the exceptions to general regulations; and the provisions of the federation and the association's bylaws. Therefore, the relevant authorities failed to demonstrate with relevant and sufficient grounds that the excursion carried out by the applicant’s association whose founding purpose is to spread nature sports among its members and to organize cultural excursions within the framework of its bylaws, constituted a violation of the provisions of the relevant law and that the administrative fine imposed on the applicant corresponded to a compelling social need. As a result, it was concluded that the administrative fine imposed on the applicant was not in line with the requirements of the social order governed by democracy.

In the light of the reasons explained above, the Constitutional Court found a violation of the freedom of assembly.