Mert Batur

Freedom of expression, demonstration and association are fundamental rights and freedoms according to the European Convention on Human Rights (ECHR) and the Constitution. The debate on the scope and use of these rights as stated in the Law No. 2911 on Meetings and Demonstrations and the Disciplinary Regulations of the Higher Education Council (YÖK) is important for the development of the exercise of freedom of expression in the universities. It aims to point to the unlawfulness of the current practices by comparing the laws and by-laws stated in the ECHR and Constitutional regulations.

          1. Within the scope of the ECHR and the Constitution

                a. Freedom of Expression

Article 10 of the ECHR regulates freedom of expression. The definition in the text is as follows: “Everyone has the right to freedom of expression. This right shall include the freedom to hold opinions, and to receive and impart information and ideas without interference by public authority  and regardless of frontiers.” The freedom of expression regulated in Article 10 of the ECHR is similarly articulated in Article 26 of the Constitution as follows: “Everyone has the right to express and impart their thoughts and opinions by word, text, picture or other means, alone or collectively. This freedom also includes the freedom to receive or exchange news or ideas without the interference of official authorities.”

In both regulations, it has been accepted as a basic rule that public authorities avoid interference with the freedom of expression of individuals and/or communities.

General regulations regarding the circumstances and the  reasons for interference and at what level to interfere with the freedom of expression have been made subject to this basic rule. ECHR states, [the exercise of freedom of expression] “…may be subject to some formalities, conditions ,restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interest  of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation and rights of others, for preventing  the disclosure of information received in confidence, or for  maintaining the authority and impartiality of the judiciary.” (Article 10/2).

Similarly, conditions that require  the restriction of freedom of expression are stated as : “…it [the freedom of expression] can be restricted to the purposes of the protection of national security, public order, public safety, the basic characters of the Republic and the indivisible integrity of the state with its country and nation, for the prevention of crime, for the punishment of criminals, for not disclosing the information duly specified as a state secret, the protection of the reputation or rights of others,  of privacy and the professional secrets prescribed by law or fulfilling the duty of judiciary as required.” (Article 26/2)

As clearly understood from these statements, these reasons for restricting freedom of expression are not shown as examples; on the contrary, these cases are given to demonstrate the boundaries of the limitations. Freedom of expression, which is one of the fundamental rights and freedoms, is of special importance, since it is both the basis of many other rights (primarily the right to demonstration and organization) and one of the most basic requirements of a democratic society. Both the constitution and the ECHR regulations for the restriction of this right (freedom of expression) are exceptional and are subject to other restrictions, which are expressed as the limits of restriction. Once again, the regulation and protection introduced are mainly aimed at exercising this right without the intervention of the public authority.

          b. Freedom of Demonstration and Association

According to Article 34 of the Constitution: “Everyone has the right to organize unarmed and to hold peaceful  meetings and demonstrations without prior permission. The right to assembly and demonstrations can only be limited by law for the purpose of national security, public order, prevention of crime, protection of public health and ethics or the rights and freedoms of others.”

According to Article 11 of the ECHR: “Everyone has the right to freedom of peaceful assembly and to freedom of association. The exercise of these rights cannot be restricted except for those prescribed by law and necessary for the protection of national security, public security, public order and prevention of crime, protection of health or ethics or the rights and freedoms of others in a democratic society. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

These rights which are stated by the Constitution and ECHR as subject to restrictions  “by law”, are articulated in the Law on Assembly and Demonstrations No.2911. According to Article 3 of the Law: “Everyone has the right to hold meetings and demonstration marches, without prior permission, for certain purposes, which are not considered criminal by law, unarmed and peaceful, according to the provisions of this Law.” According to the Article 10 of the same Law, “A notification which is signed by all members of the organizing committee should be given to the governor’s office or the district governor’s office where the meeting is held at least forty-eight hours before the meeting.” Compared to the same Law, Article 22 states, “Meetings can not be held on streets, in parks, in temples, in public service buildings, facilities and their annexes in the area of one kilometer from the Grand National Assembly of Turkey (T.B.M.M.). Demonstrations can not be organized on intercity highways.”

        2. Freedom of Expression, Demonstration and Association

Universities are institutions that have a public legal person and provide a higher education public service. This statement is valid for both state universities and foundation universities. Although they are subject to different administrative and financial regulations, foundation universities are institutions that have the quality of a public legal person and provide a public service, just like state universities. The campuses, where universities are located, are public spaces and the state’s negative obligations regarding freedom expressions are also valid here. The ECHR and the Constitutional Court have parallel opinions on this issue. The state’s positive obligations on freedom of expression apply both in public areas and in private areas of real or legal persons. If the employment contracts are terminated unilaterally due to the statements made about the union rights of employees in a private company and even if it is understood by the court that this is the real reason despite another stated reason, the dispute in this example will be under the positive obligations of the state. Based on this point, we can clearly state that the State is obliged to take measures to ensure freedom of expression and to block attempts to prevent this right, including by non-state actors. 

        a. Within the Scope of Higher Education Council (YÖK) Disciplinary Regulations: Limitations on Freedom of Expression, Demonstration and Association

The YÖK Disciplinary Regulation published in the Official Gazette on 18.08.2012 was created “to regulate the disciplinary penalties and investigation procedures and principles to be given to students of higher education institutions”. According to the regulation, the limits of freedom of expression, demonstration and association should be  considered for reasons that require various degrees of disciplinary action. 

The Article 4 of the regulation states that “posting announcements on places not designated by the higher education institution officials” are included in the acts requiring a warning penalty. In the Article 5 of the regulation, “distributing written notifications without permission, to post banners and posters in the higher education institution” is among the acts that require a disciplinary warning. These regulations are clearly a violation of the right to freedom of expression regulated by Article 26 of the Constitution and Article 10 of the ECHR. As guaranteed in the articles mentioned, “everyone has the right to express and impart their thoughts and opinions by word, text, picture or other means, alone or collectively.” In universities where it is assumed that this right includes the freedom of scientific, artistic and academic expression; exclusion of freedom of political expression from this exercise is not based on any valid reason. Handing out flyers, hanging posters and banners are effective tools developed over the centuries to exercise freedom of expression. As stated in the Constitution, the right to impart thoughts and opinions through words, writings and pictures are the most important parts of freedom of expression. On the other hand, it is a violation of the freedom of expression that these are not completely prohibited but subject to authorization.  For example, sharing any written or visual material by hanging or displaying that does not contain hate speech, violence and aggression, or does not praise the crime and the criminal, is within the general limits of freedom of expression and a permission to distribute such material should not be necessary.  The existence of such a possibility does not result in a general prohibition authorization, but only a measure and possibility of sanction for that material. In Article 6 of the regulation, “organizing meetings inside or outside of the higher education institution without the permission of the authorities” is considered to call for a suspension from one week to one month. This regulation is a clear violation of Article 34 of the Constitution. Everyone has the right to organize meetings and demonstrations without prior permission.

 b. Can regulations be arranged against the ECHR or the  Constitution?

According to the principle of hierarchy of norms; regulations are superseded by the laws, and laws are duly enforced under international conventions and the Constitution. In other words, regulations should comply with the laws, laws also should comply with international conventions and the Constitution. As stated in paragraph 5 of Article 90 of the Constitution, “if there are different provisions regarding fundamental rights and freedoms enacted by international treaties and the Procedure of Laws, international treaty provisions shall be taken as basis.” The agreements specified with this regulation have been brought into domestic law and have been superior to the laws. Since the ECHR is an international convention on fundamental rights and freedoms, duly enacted, the provisions of the ECHR are to be followed in case of conflict between domestic law and ECHR. In other words, even if the relevant regulations are in line with the law, they will not comply with the hierarchy of norms unless they are compatible with the ECHR. 

As stated in the Decision of the 5th Department of the Council of the State, dated 10/11/2005 and numbered E: 2002/3255, K: 2005/5075: “With the article 124 of the Constitution, the Prime Ministry, Ministries and public legal entities have been given the authority to regulate by-laws on issues concerning their duties. Administrations may regulate by-laws within the framework of this authority, as well as make amendments to the by-laws  in order to carry out public service more effectively and efficiently. Provided that the regulations do not contain provisions contrary to the Constitution, Law, Regulation and general principles of the law and are issued in accordance with the prescribed condition; it is clear that there is no obstacle to the use of this regulatory authority in terms of public law. ”

When these regulations and court decisions are considered together, it can be clearly seen that; by-laws made through regulations on freedom of expression, demonstration and association must comply with the Constitution and the ECHR. 

Otherwise, as in the YÖK Disciplinary By-Law, if an administrative action is taken on a person based on these regulations, the person can apply to the Administrative Court within 60 days. In this case, the fact that the regulation has not been canceled according to the precedent developed by the Council of State does not mean that the administrative act based on the regulation cannot be canceled. 

3. Conclusion

Universities are places where the state has negative and positive obligations in terms of freedom of expression, demonstration and association. Considering the quality of public service in universities, it is also important to remove all obstacles to the exercise of the  rights and freedoms and to exercise these rights without the intervention of the public authority.

With the disciplinary regulations of universities and the YÖK Disciplinary By-Law, which is the basis of these regulations, and the Law No. 2911 on Meetings and Demonstrations cannot contradict the ECHR. The convention itself supersedes  domestic law according to  Article 5 of the Constitution.  Conflicting laws and regulations should be changed or canceled.