Penalty imposed on political party members for distributing leaflets overturned by Constitutional Court

In the Körfez district of Kocaeli, two individuals affiliated with the Labour Party's Kocaeli Provincial Organization were detained by police while attempting to distribute leaflets titled "What will we do to live humanely?" and "Mafia and gangs are the companions of the order! The struggle of the working people can clean up our country!" They were subsequently issued an administrative fine under Article 42 of the Misdemeanors Law on the grounds that they had posted posters without permission. However, the individuals contested the fine, stating that they had not posted any posters and were merely distributing party leaflets.

The objections were definitively rejected by the Körfez Criminal Court of Peace. Following this, the two citizens applied to the Constitutional Court via individual application, emphasizing that the administrative fine lacked a legal basis and that distributing leaflets and posting posters are legally distinct actions.

CONSTITUTIONAL COURT RULES VIOLATION AND AWARDS 30 THOUSAND TL IN COMPENSATION

The High Court ruled that the applicants' freedom of expression had been violated and ordered that each individual be paid 30 thousand Turkish Lira in non-pecuniary damages. It was also decided that a copy of the ruling be sent to the Körfez Criminal Court of Peace for a retrial to remedy the consequences of the violation.

In the reasoning for the decision, it was underscored that the act of "posting posters" specified in Article 42 of the Misdemeanors Law, which was applied in the incident, did not occur. It was noted that no evidence was found in the file submitted to the court indicating that the individuals had posted any posters. The High Court included the following assessment in its reasoning:

"Unless there is a poster or announcement posted in the places and in the manner specified by law, it is not possible to punish individuals under Article 42 of Law No. 5326. In the application, although the administration did not demonstrate that the applicants had committed the act of posting posters, the judicial decisions rendered upon the objection to the administrative fine were final rejection decisions, made without any evaluation regarding the elements required for the misdemeanor of posting posters under Article 42 of Law No. 5326 or how this occurred in the concrete case. In this situation, it has been concluded that the interference with the applicants' freedom of expression was not prescribed by law. For the reasons explained, it must be decided that the freedom of expression guaranteed under Article 26 of the Constitution has been violated. It is necessary to decide that, in accordance with the rule of restitution and limited to the request, a net 30 thousand Turkish Lira in non-pecuniary damages should be paid to each of the applicants to compensate for the non-pecuniary damages that cannot be remedied solely by the finding of a violation."