Events
A Dec trip and a walk in a tunnel were organized by the members of the association, including the applicant. During the inspections carried out in the region during this excursion and hiking activity, it was found that the association did not have a travel agency operating certificate. In addition, an administrative fine was imposed by the administration on the applicant for engaging in illegal travel agency activity in accordance with the Law on the Association of Travel Agencies and Travel Agencies No. 1618.
The applicant appealed the administrative fine; the judge examining the appeal rejected the applicant’s appeal on the grounds that the applicant organized a package tour by the decision of the association, associations do not have such powers, it is mandatory to have a business certificate to organize a package tour, but the association in question does not have a business certificate. The applicant also appealed against the decision in question; the magistrate’s office, which examined the appeal, firmly rejected the applicant’s appeal.
Count
The applicant claimed that the application of an administrative fine against him for engaging in the activity of an undocumented travel agency of the association of which he is the president violated his freedom of association.
Evaluation of the Court
Freedom of association, collective of individuals representing themselves for the protection of their own interests refers to the freedom to come together in a formation. The right to association, which is a form or a special aspect of freedom of association, includes the right to freedom of association from the point of view of a person, as well as the right to become a member of an association, participate in the activities of an association, and participate in activities to protect the interests of its members. Associations, on the other hand, are organized and equipped with a legal entity in which people constantly combine their knowledge and work in order to achieve or pursue a specific goal. Article 33 of the Constitution. its article is mainly aimed at protecting against arbitrary interference by public authorities during the exercise of the right of association.
However, the limitation on organization should be of an exceptional nature and aimed at meeting a compelling social need in a democratic society, such as maintaining public order. In order for the measure constituting the intervention to be considered to meet a mandatory social need, it must be conducive to achieving the goal, present itself as the last resort that can be applied for and the lightest measure that can be taken.
On the other hand, administrative authorities may interfere in the activity of an association with the authority they receive from the law. However, any actions and actions of a public power that constitute interference by bodies exercising public power that they do not provide relevant and adequate justification for may violate fundamental rights and freedoms.
In the concrete case, a trip carried out by the members of the association was considered a commercial activity by the public authorities and an administrative sanction decision was applied against the applicant, who is the president of the association. It is clear that the administrative decision in question is aimed at preventing the deterioration of public order and preventing violations of the law. However, only the information that the trip in question is organized without an operating document is included in the Audit Report. In the administrative sanction decision, only the relevant article of the law is included. In both the Audit Minutes and the administrative sanction decision, no assessment was made regarding the issues such as how the trip activity was covered by the commercial package tour, the status of the participants in the trip (whether they are members of the association), the status of the association (whether they are exempt from relevant laws), and how the commercial activity was carried out. In the most general terms, the administration has not been able to demonstrate how the concrete action violated the relevant article of the law. The court of cassation also rejected the appeal, stating in its assessment that only the applicant organized a package tour by the decision of the association, but the associations had no such authority and that the association in question did not have an operating certificate.
What the administration nor the court the applicant’s allegations are based on documents that alleged claims, and the regulation of sports activity is specified as an exception 27855 published in the official gazette of the federation and has taken account of the provisions of the rules of procedure of the association. The purpose of the organization is spread among members of the association subject to appeal organize extreme sports and cultural excursions carried out within the framework of the Charter of the founding of a trip that are contrary to the provisions of laws and, therefore, the applicant of administrative penalty for compelling reasons may not have been relevant and sufficient expounded that corresponds to a social need. For this reason, it was concluded that the administrative fine imposed on the applicant was not in accordance with the requirements of the democratic social order.
The Constitutional Court has decided that the freedom of association has been violated on the grounds described.
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