Press Release No: Individual Application 41/17
20.12.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE RIGHT TO LABOUR UNION MEMBERSHIP DUE TO ADMINISTRATIVE FINE IMPOSED FOR HANGING BANNERS WITHIN THE SCOPE OF LABOUR UNION ACTIVITIES

On 18 November 2017, the Second Section of the Constitutional Court found a violation of the right to labour union membership safeguarded by Article 51 of the Constitution in the individual application lodged by Abdulvahap Can and Others (no. 2014/3793).

The Facts

Eğitim ve Bilim Emekçileri Sendikası (“the EĞİTİM SEN”), one of the applicants, is a labour union that carries out its activities with the aim of protecting and developing the economic, social, democratic and cultural rights of the employees working in the field of education and forming a free and democratic business life. The other applicants, who are real persons, are teachers working in the public sector. They are also members and heads of the Batman Branch of the EĞİTİM SEN.

At the beginning of the 2013-2014 school year, the Batman Branch of the EĞİTİM SEN, together with an association called Kurdi Der and the Batman Provincial Organization of the Peace and Democracy Party (“the BDP”), carried out activities themed education in mother tongue. Within the scope of these activities, banners themed “education in mother language” were put on fifteen billboards located in various places in the city centre, which were operated by a company. Thereupon, following the processes initiated by the Batman Governor’s Office, administrative fines were imposed on eight persons, including the applicants, in the amount of 1,500 Turkish liras (TRY).

The applicants contested the administrative fines before the –abolished– Batman 1st Magistrates’ Court (“Magistrates’ Court”). In their petition, the applicants argued that the administrative fine imposed with reference to a unilateral report issued by the police was unlawful. They maintained that they only hung banners and that it was not possible to hold them personally responsible for this. They added that although there had been a sole activity which could be regarded as a labour union activity, eight persons were imposed administrative fines in the amounts of higher than the minimum limit. Therefore, the punishment in question turned into a means of pressure against the labour union.

The official of the company operating the billboards submitted before the Magistrates’ Court that the relevant banners had been hung with reference to a contract signed between the company and a member of the Provincial Organization of the BDP.

The Magistrates’ Court dismissed the objections to the administrative fines with no right of appeal. It stated that within the scope of the event organized by the Batman Provincial Organization of the BDP, the Kurdi Der association and the EĞİTİM SEN –all had signatures on the banners–, an illegal demonstration march had been carried out without any notification to the relevant authority as stated in the banners. It therefore concluded that the administrative fines imposed in accordance with Article 42 of the Misdemeanour Law no. 5236 and Article 27 of the Law no. 2911 on Meetings and Demonstrations were lawful.

The Applicants’ Allegations

Making the same arguments in their petitions, the applicants maintained that their right to labour union membership, freedom of expression, right to a fair trial and the principle of equality were breached.

The Constitutional Court’s Assessment

The Constitutional Court examined the applicants’ claims as a whole under the right to labour union membership, and in brief, it made the following assessments:

The right to labour union membership also guarantees that members of a labour union are not imposed sanctions due to their membership to the union or taking part in its activities. However, the right to labour union membership is not absolute, and it may be restricted in accordance with the criteria set forth in Article 13 of the Constitution.

In the present application, the Constitutional Court concluded that there was an interference with the right to labour union membership. However, it noted that the criteria of “being lawful” and “legitimate aim” were not prejudiced. The Court focused on the criterion of “compliance with the requirements of a democratic social order”.

The public authorities must demonstrate reasonable grounds as to the fact that an interference with the freedom of expression within the scope of labour union activities, by means of punishment, was necessary in a democratic society.

In the present application, each applicant was imposed an administrative fine of TRY 1,500 for hanging banners without permission. It is understood that the applicants hung the banners within the scope of the activities themed education in the mother tongue carried out by the EĞİTİM SEN together with two other organizations. The public authorities neither established that the contents of the banners constituted an offence, nor did they submit an allegation in this respect.

There is no doubt that hanging a banner, themed “education in the mother tongue”, that contains no criminal element is a way of expression of thoughts. In the present application, it was performed as part of labour union activities. Therefore it falls into the scope of the guarantees concerning the freedom of labour union membership and the freedom of expression, enshrined in the Constitution. However, the use of constitutional safeguards to express thoughts by hanging banners does prevent determining certain prerequisites for hanging banners. Determining such prerequisites does not lead to a violation of the right to labour union membership, unless it makes it impossible to enjoy the right or makes it meaningless to bestow the right.

The legislator has prescribed administrative fine for hanging banners without permission. According to the justification of the Law, the punishment aimed at preventing visual pollution. This cannot be regarded as an unnecessary measure. However, not taking a permission may not be sufficient alone to justify the punishment. As stated in the previous judgments of the Constitutional Court, imposing punishment without a relevant and sufficient reason that the public order has deteriorated might lead to a violation of the right to labour union membership. In the present application, neither the administration nor the Magistrates’ Court made any determination or assessment as to the fact that the banners led to a deterioration of the public order or that a risk emerged in this respect.

The Magistrates’ Court did not also make an assessment concerning the allegations that no permission was required for putting banners on the billboards which were operated by a private company and rented by the Batman Provincial Organization of the BDP.

Therefore, it was concluded that an interference with the right to labour union membership by means of imposing administrative fine, without relevant and sufficient reasons, was not necessary in a democratic society. Moreover, the administrative fine imposed on the applicants may create a deterrent factor in terms of carrying out labour union activities.

In conclusion, the Constitutional Court held the applicants’ right to labour union membership safeguarded by Article 51 of the Constitution was violated.

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

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