Press Release No: Plenary Assembly 3/22
Press Release concerning the Decision Annulling the Provision Enabling the Introduction of an Arrangement as to the Operation and Closure of Association Facilities through a Regulation
The Constitutional Court, at its session dated 16 December 2021, found unconstitutional and annulled the phrases “…operation and closure…” in the second sentence of Article 26 of the Law on Associations no. 5253 and held that the relevant decision would be effective after nine months as from the date of its publication in the Official Gazette (file no. E.2021/59).
The contested provision envisages that the principles and procedures regarding the operation of youth hostels, pensions and clubhouses that the associations will operate so as to realise the objectives specified in their charters as well as regarding the closure of such facilities shall be arranged through a regulation.
Grounds for the Request for Annulment
It was maintained in brief that the contested provision was unconstitutional on the ground that it entrusted the administration with the authority to determine the grounds for closure of the youth hostels, pensions and clubhouses by envisaging that the principles and procedures as to the closure of such facilities shall be arranged through a regulation, which fell foul of the principle of rule of law.
The Court’s Assessment
Article 33 of the Constitution titled “Freedom of association” sets forth that everyone has the right to form associations, or become a member of an association, or withdraw from membership without prior permission, that no one shall be compelled to become or remain a member of an association, that freedom of association may be restricted only by law on the grounds of national security, public order, prevention of commission of crime, public morals, public health and protecting the freedoms of other individuals, and that the formalities, conditions, and procedures to be applied in the exercise of freedom of association shall be prescribed by law.
Freedom of association is a significant part of the freedom of assembly, which is the right to associate with others collectively by forming bodies to protect and defend the individuals’ own interests and to realise their ideals and needs. The freedom of assembly enables individuals to collectively realise their political, cultural, social and economic objectives. Freedom of association, a form or special aspect of freedom of assembly, also embodies, along with the freedom to establish an association, the rights to become a member of an association, to participate in the activities of an association, and to engage in activities with a view to protecting the interests of its members.
As set forth in the first sentence of Article 26 of Law no. 5253, the operation of facilities such as youth hostels, pensions and clubhouses, by the associations, to realise the objectives specified in their charters is also among the activities falling within the scope of the freedom of association.
In this regard, as introducing regulations concerning the operation and closure of such facilities impose a restriction on the freedom of association, Article 13 of the Constitution -whereby the general principles as to the restriction of fundamental rights and freedoms are laid down- must be complied with. Accordingly, the first condition to justify a given restriction of this freedom is that the statutory arrangements restricting the freedom of association must be introduced by law.
Pursuant to Articles 13 and 33 of the Constitution, the formal existence of a statutory arrangement restricting the right of association is not per se sufficient, and the statutory provisions must be precise, accessible and foreseeable to the extent that would avoid any risk of arbitrariness.
As a matter of fact, it is also a requirement of the principle of rule of law, enshrined in Article 2 of the Constitution, that a given law imposing restriction on fundamental rights must be of such a nature. In a rule-of-law system, statutory arrangements must be sufficiently clear, precise, comprehensible, applicable and objective so as not to cause any hesitation and doubt on the parts of both individuals and the administration, and they must offer preventive measures against the arbitrary practices of public authorities as well. Therefore, the lawfulness criterion that is laid down in Articles 13 and 33 of the Constitution as one of the grounds for restriction should be interpreted in the light of the principle of rule of law.
The contested provision lays down that the principles and procedures regarding the operation of the youth hostels, pensions and clubhouses, by the associations, so as to realise the objectives specified in their charters as well as regarding the closure of such facilities shall be arranged by a regulation. In this sense, the contested provision falls foul of the requirement that fundamental rights and freedoms may be restricted by law as it enables the introduction of a statutory arrangement on a matter related to the freedom of association through a regulation without a legal framework being set and basic principles being indicated.
Consequently, the contested provision has been found unconstitutional and therefore annulled.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.