Monday, June 24, 2013

Freedom of assembly in Turkey

The crack-down on protesters in Istanbul has prompted much international criticism. Considering Turkey’s track record before the European Court of Human Rights, the Turkish government’s heavy-handed response to the demonstrations does not come as a surprise.

Turkey is one of the ‘main sinners’ with regard to observance of the ECHR, i.e. it belongs to the five countries responsible for 70 % of the cases in which the ECtHR found a violation of the Convention (the others are Russia, Ukraine, Serbia and Italy). From the country’s accession to the ECHR in 1954 until 2012, the European Court of Human handed down 2521 judgments against Turkey in which it found at least one violation of the European Convention on Human Rights (by way of comparison, Germany, whose number of 80 Million inhabitants is roughly comparable to Turkey’s 73 Million was found in violation of the Convention in 257 cases).

While violations of the right to freedom of expression (215 cases) and freedom of assembly (57 cases) do not account for the bulk of judgments against Turkey, they are far from being exceptions. In a 2011 report on ‘Freedom of expression and media freedom in Turkey’, the Council of Europe Commissioner on Human Rights note[d]  that violations of Article 10 of the European Convention on Human Rights (‘ECHR’) on freedom of expression have consistently taken a prominent place in the case-law of the Court concerning Turkey for more than a decade and continue to do ‘. 

As far as the freedom of assembly is concerned, the problem does not appear to lie so much in the legal framework, but rather in the way it is applied, in a lack of appreciation of the importance of the right to peaceful assembly on the part of the Turkish authorities. 

In Özalp Ulusoy v Turkey, for example, the applicant had followed an appeal by Turkish non-governmental organization to demonstrate Istanbul to demonstrate against killings in Syria and to commemorate the victims of a massacre in Halabja. Although Turkish law as it stood at the time required that the authorities be informed officially about the planned demonstration in advance, the organizers had failed to notify the competent bodies.

Members of the security police arrived. They announced that the demonstrations had not been authorized and asked the participants to leave. 32 persons were arrested and placed into a holding cell for a night. After her release, the applicant filed a complaint to the state prosecutor. She stated that she had been mistreated during her arrest; policemen had thrown her on the ground, punched her and kicked her. She submitted a medical certificate describing her injuries, but the prosecution dismissed the case. The applicant brought a case to the European Court of Human Rights contending that her rights under article 11 (freedom of assembly), article 3 (prohibition of torture) had been breached. The Government argued that there was no infringement on the right to freedom of assembly, for the demonstration had been illegal.

The Court rejected this argument. It stated that the applicant had been searched by police on her way to the  place of the demonstration and that a large number of police had been present, both of which rendered it unlikely that the authorities had been unaware of the event. It also reiterated that while the contracting states of the European Convention on Human Rights are entitled to entrench requirements for prior notice of demonstrations in their respective legal frameworks, it was important that they demonstrate a certain tolerance towards peaceful demonstrations in order to ensure that the right to assembly not be rendered meaningless. It stated that the demonstration in which the applicant had participated had not posed any threat to public order and security other than blocking the traffic. In light of these circumstances the Court ruled that the brutal crackdown on the demonstrators could not be justified as necessary in a democratic society. Consequently, it found a violation of the right to assembly. (In addition to that, the European Court of Human Rights held that article 3 enshrining the prohibition of torture and ill-treatment had been breached).

In Disk and Kesk v Turkey, the applicants were trade unions.  Before labor day 2008, they notified the authorities that they intended to hold a gathering at Taksim square to celebrate labor day and to commemorate their friends who had lost their lives during the labor day demonstrations in 1977. The competent governor authorized the gathering of representatives of trade unions, but prohibited at the same time any demonstration on a larger scale. Press releases were issued stating that any kind of demonstration on Taksim square was illegal and unconstitutional and represented a threat to public order.

On 1 May people started gathering in front of DISK headquarter. Police asked them to disperse. The crowd refused, stating that they were merely waiting in front of  the headquarter, a pedestrian zone, which did not violate any law. Police started dispersing the group by using tear gas, pressurized water and paint.


The applicants contended that this violated their rights under article 11 ECHR (right to assembly). The European Court of Human Rights pointed out that states must not only safeguard the right to peaceful assembly, but that it also must refrain from applying unreasonable indirect restrictions upon this right. It reiterated that demonstrations may cause a certain disruption and disturbance to traffic, but that states have to display a certain measure of tolerance towards peaceful gathering to make the right to assembly practical and effective. Although the authorization which had been necessary according to domestic law had not been issued, the Court found the reaction of the state and the measures taken to disperse the crowd disproportionate. It found Turkey in violation of article 11 ECHR. 


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