Press Release No: Individual Application 18/17
20.07.2017

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE RIGHT TO LABOUR UNION MEMBERSHIP DUE TO IMPOSITION OF FINE FOR A PEACEFUL ACTIVITY

On 25 May 2017, the Plenary 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 Eğitim ve Bilim Emekçileri Sendikası (no. 2014/920).

The Facts

The Education and Science Workers Union (“Eğitim ve Bilim Emekçileri Sendikası”) (“the EĞİTİM SEN”), the applicant, alleged that during the two years period before the date of application, its members were many times imposed administrative fines under the Misdemeanor Law due to union-related activities.

By a decision dated 3 June 2013, the Confederation of Public Employees Trade Unions (“Kamu Emekçileri Sendikaları Konfederasyonu”) (“the KESK”), to which the EĞİTİM SEN is affiliated, decided to go on strike for two days on 4-5 June 2013. Twenty-one members of the applicant union made a press announcement in the yard of the Çanakkale Fine Arts and Sports High School and started a strike.

In two separate police reports issued against Telat Koç, one of the applicants, for personally attending the press announcement and being the provincial representative of the union, it was stated that the press announcement was made in the yard of the high school, which blocked the gate, and that the high school in question was not among the places allowed for a press announcement. Therefore a judicial fine was imposed on the applicant by the Provincial Security Directorate on 6 August 2013. Telat Koç’s petition against the judicial fine was accepted by the 1st Chamber of the Çanakkale Magistrates’ Court on 29 November 2013 and the fine was revoked.

The petition lodged by Telat Koç, on behalf of the applicant union, against the administrative sanction imposed on it on 2 October 2013 was dismissed by the 3rd Chamber of the Çanakkale Magistrates’ Court on 2 December 2013.

Although the above-mentioned activity was exclusively mentioned in the application form, administrative sanctions were imposed on the members of the applicant union countrywide in the same period. According to the court decisions which were not mentioned in the application form but included in the file, some of the administrative fines were revoked, but some others were not.

Gülhan Oktay, one of the applicants, as well as a member of the Batman Branch of the Union, attended the press announcement of this union held in front of the building of the Batman Provincial Directorate of National Education on 8 May 2013. She alleged that she was imposed administrative fine and that her petition against the relevant decision was rejected by the 2nd Chamber of the Batman Magistrates’ Court. By its letter dated 17 February 2014, the Constitutional Court requested criminal records and other documents pertaining to Gülhan Oktay. Although, the applicant’s representative submitted documents with respect to many members of the union, he did not submit documents concerning Gülhan Oktay.

The Applicants’ Allegations

The applicants maintained that the union meetings and press announcements did not constitute an offence in terms of criminal law, however the administration considered their activities within the scope of Law no. 5326, therefore arbitrary punishments were imposed on them. They added that the administrative fines imposed on them were unpredictable and violated their right to demonstration and assembly. The applicants also argued that while the petitions against the administrative fines were accepted by many courts, their petitions were dismissed without justification, which resulted in a violation of their right to a fair trial. In this respect, the applicants requested that a violation would be found, pecuniary damage would be awarded to them and the administration would apologize to them.

The Constitutional Court’s Assessment

In brief, the Constitutional Court made the following assessments:

The Constitutional Court cannot consider an action carried out against a proper order sufficient for an interference with fundamental rights and freedoms. Such an interference may be justified when it is demonstrated that public safety, public order or general health will deteriorate or might deteriorate. In cases where it cannot be demonstrated with relevant and sufficient evidence that the public order has deteriorated, any public power or action interfering with fundamental rights may violate fundamental rights and freedoms.

The administrative courts or the relevant magistrates’ courts did not find that the press announcement made by the members of the applicant union in the school yard had disrupted the education, frightened and disturbed the students, deteriorated the public order or posed a risk in this sense. On the contrary, neither the law enforcement officers nor the administration needed to intervene in the press announcement, and it was after the press announcement that the law enforcement officers issued administrative fine for the applicant. As a matter of fact, the administrative fine imposed on Telat Koç was revoked by the first instance court that underlined the peaceful nature of the press announcement. The court stated that the press announcement did not contain violence.

In cases where the demonstrators are not involved in acts of violence, as in the present application, the public authorities must tolerate the right to organize meetings and demonstration marches to a certain extent. A peaceful demonstration or press announcement must, in principle, not be subject to a threat of criminal sanction.

In cases where the relevant right is restricted due to such reasons as the place of the demonstration or press announcement, it must be set out by the officials using public power in their decisions (for example, in the police reports) that the intervention to be made against the demonstrators in accordance with the orders of the competent authorities is necessary for maintaining the public order and that the sanctions have been imposed due to the deterioration or the risk of deterioration of the public order.

In the present application, a fair balance could not be struck between the measures deemed necessary to achieve the legitimate aims set forth in Article 51 § 2 of the Constitution and the rights of the applicant union under the same article. It was concluded that the administrative fine imposed on the applicant was not necessary for maintaining the order in the educational institution.

In conclusion, the Constitutional Court held that 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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