Press Release No: Individual Application 8/19
31.01.2019

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE RIGHT TO PROPERTY DUE TO COLLECTION OF THE EXPERT FEE FROM THE APPLICANT

On 9 January 2019, the Second Section of the Constitutional Court found a violation of the right to property safeguarded by Article 35 of the Constitution in the individual application lodged by A.D. (no. 2015/10393).

The Facts

The governor’s office imposed an administrative fine on the applicant, an association carrying out human rights-related activities, for illegal collection of donations. It also ordered the freeze of the applicant’s bank and postal checking accounts.

The applicant brought an action before the administrative court seeking the annulment of the administrative fine. The court unblocked the applicant’s bank accounts.

The decision was appealed. The Council of State quashed the decision on the ground that the dispute fell within the jurisdiction of the magistrates’ court. The court abided by the Council of State’s decision and dismissed the case for lack of jurisdiction.

After the finalization of the decision, the applicant appealed before the magistrate judge’s office. The magistrate judge, having ordered an expert report on the case, rejected the applicant’s appeal, finding no unlawfulness in the administrative sanction. The judge also decided that the expert fee of 350 Turkish liras (TRY) would be collected from the applicant and appropriated by the Treasury.

The applicant’s appeal against the rejection of its objection to the administrative fine, as well as against the collection of the expert fee was dismissed by the magistrate judge.

The Applicant’s Allegations

The applicant maintained that its right to property had been violated due to the court decision ordering it to pay the expert fee that had incurred during the proceedings.

The Constitutional Court’s Assessment

The judicial authorities enjoy a wide discretion in seeking expert opinion during the proceedings. However, although it is clearly understood at a glance that the dispute can be resolved by the judge’s legal knowledge, seeking an expert opinion and collecting the expert fee from the relevant party will constitute a disproportionate interference with its right to property.

The applicant did not deny the fact that it had not obtained a prior permission before collecting donations. It raised an objection by arguing that it collected donations, which was an ordinary activity. Although the grounds relied on by the applicant were not related to material facts, but only to legal matters, the magistrate judge ordered an expert report without any justification.

As a matter of fact, in the expert report, the topic had been formulated as “whether the administrative fine was justified”. The report also stated that “there was no unlawfulness in the administrative sanction” and that “the objection was not justified”.

Accordingly, the material facts of the present case were not required to be discussed. It is therefore seen that all of the issues included in the expert report could have been enlightened by the judge’s legal knowledge. It is very clear that the issues such as whether the administrative fine was justified, whether the administrative sanction was lawful, what the legal basis of the administrative sanction was, and whether the objection was justified can only be adjudicated by the judge within the scope of its jurisdiction. Therefore, no expert opinion is required on such matters. 

Collection of the expenses that incurred as a result of obtaining evidence, which would clearly not facilitate the resolution of the dispute, from the relevant party will unnecessarily prolong the proceedings, as well as it will result in an unnecessary expense for the relevant party, constituting a disproportionate interference with its right to property.

Although the amount of the expert fee was relatively low, it was approximately half of the administrative fine subject to the applicant’s objection. Accordingly, it has been concluded that the fair balance between the public interest and the applicant’s right to property was disturbed to the detriment of the applicant and that the said interference was disproportionate.

Consequently, the Constitutional Court found a violation of the right to property safeguarded by Article 35 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2019