REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

PLENARY

JUDGMENT

ALİ RIZA ÖZER AND OTHERS

(Application no. 2013/3924)

PLENARY

JUDGMENT

I. SUBJECT-MATTER OF THE APPLICATION

1.      The applicants alleged that the police's barring their attendance to the meeting which was to be held in Ankara in order to make a mass press statement against the bill that introduced changes to the education system and the law enforcement's use of disproportionate force and infliction of injuries during the incidents that broke out due to the fact that the law enforcement did not allow them when they started to march in order to make a press statement against that barring at İzmir Konak Square on the very same day and in front of İzmir Metropolitan Municipality the next day violated the prohibition of mal-treatment and the freedom of expression and the right to organize meetings and demonstration marches.   

II. APPLICATION PROCESS

2.      The application was lodged on 31/5/2013 with the 3^rd Assize Court of İzmir. The deficiencies detected as a result of the preliminary administrative examination of the petition and its annexes were made to be completed and it was determined that no deficiency preventing their submission to the Commission existed.

3.      It was decided by the Third Commission of the Second Section on 19/12/2013 that the examination of admissibility be conducted by the Section and the file be sent to the Section.

4.         The facts, which are the subject matter of the application, were notified to the Ministry of Justice on 13/1/2014. The Ministry of Justice submitted its opinion to the Constitutional Court on 7/3/2014 at the end of the additional time period that was granted.

5.      The opinion submitted by the Ministry of Justice to the Constitutional Court was notified to the applicants' counsel on 27/3/2014. The applicants submitted to the Constitutional Court their responses against the opinion of the Ministry of Justice on 9/4/2014.

6.      Since it was deemed necessary during the meeting held by the Second Section on 16/10/2014 that the application be decided upon by the Grand Chamber due to the nature of the application, it was decided that the application be referred to the Grand Chamber in order to be deliberated as per Article 28(3) of the Internal Regulation of the Constitutional Court.

III. THE FACTS

A.    The Circumstances of the Case

7.      The relevant facts as determined from the application petition and the annexes thereof and the content of the file which is the subject matter of the application are summarized as follows:

8.      The Applicants Özcan Çetin, Orhan Bayram, Veli İmrak, Tunay Özaydın and Deniz Doğan are teachers and the applicant Ali Rıza Özer is an education inspector. The applicants are members of İzmir Branch of Education and Science Laborers' Union (Eğitim-Sen) where public employees working in the field of education are organized. Eğitim-Sen is among the components of the Confederation of Public Laborers' Unions (KESK) which the labor unions that are formed by the public employees working in other fields are members of. 

9.      KESK and Eğitim-Sen announced that they would protest the bill through a mass press statement in Ankara on 28-29 March 2012 in order to make their objection heard upon the start of deliberations at the Grand National Assembly of Turkey (GNAT) on the "Bill on Amending the Primary Education and Education Law and Certain Laws" (the bill) which is publicly known as 4+4+4. This announcement was supported by a myriad of political parties, unions, associations and various groups that are called platforms and by student groups.

10.  Following this announcement, Ankara Governor's Office, through its letter of 26/3/2012, prohibited all kinds of meetings and demonstration marches and similar protests on 28-29 March 2012 in the province of Ankara in order to prevent the disruption of public security and order, protect the rights and freedoms of others and prevent the commission of crimes after it evaluated that, during the protests to be made, an environment of conflict would be established between security forces and demonstrators for provocative purposes, that the protests would disrupt the normal flow of life and jeopardize general security and public order and security.  

11.  As per the said prohibition, the Ministry of Interior wrote letters to the governor's offices in all provinces that the exit, from the provinces, of groups which wanted to attend the press statement and protest not be allowed. Within the scope of the said letter, İzmir Governor's Office informed Eğitim-Sen İzmir Branches on the situation on 27/3/2012 and notified that the departure of groups that wanted to attend the protest desired to be held in Ankara would not be allowed and legal action would be taken in the event that the organizations within this scope were not canceled. 

12.  Members of unions and other non-governmental organizations who would attend the protest to be held in Ankara came together around 22:00 on 27/3/2012 and wanted to go to Ankara from İzmir by buses. However, the police who took measures in advance restrained the applicants' and other attendees' exit from İzmir, mentioning the lack of documents which are legally required to be kept on buses.  

13.  The applicants' and other attendees' attempts to go by other buses were also restrained by the police on the same grounds. The applicants and other attendees present at the scene thereupon closed the road where they were to traffic in order to protest the restraint of buses going to Ankara. They stood for some time and then sat down and continued their protests.

14.  The police issued warnings by megaphone in order for the road to be re-opened to traffic. Some time later, around 23:15, the demonstrators were convinced and one lane of the road was opened to traffic.  The road was closed to traffic for about 20 minutes. Later on, at around 1:30 am, the applicants and other attendees decided to go to Ankara on foot in order to get around the restraint by the security forces and started to march towards Konak Square on the road.

15.  According to the incident minutes of 28/3/2012, the security forces repeatedly issued warnings that the march was illegal. Upon the continuation of the march despite the warnings, the riot police blocked the road and wanted to restrain the march of the demonstrators.    Meanwhile, upon the fact that the demonstrators did not stop the march, a short clash took place between the police and the demonstrators and the police responded to the demonstrators with pepper gas and truncheons. The protesters thereupon stopped their march. Meanwhile, a police officer broke his ankle and was injured.

16.  Upon the announcement by a union manager that the protest would be prolonged for two more days, the crowd waited for some more time and then gathered before the SSI Provincial Directorate building and continued with their sit-in protest and they broke up at around 4:30 am in order to meet at 12:00 the next day (on 28/3/2012) (the first protest).  

17.  In relation to the first protest, the statements of the applicants Ali Rıza Özer, Özcan Çetin and Orhan Bayram and some other attendees were taken as the suspects for the crimes of opposition to the Law on Meetings and Demonstration Marches No. 2911 of 6/10/1983 and of resistance to have the officers' duty not fulfilled.

18.  On 28/3/2013, the applicants and union members gathered in front of the former Sümerbank building at Konak Square in order to protest both the said bill and the incidents which took place the night before.  To attend the same demonstration, another group also met and wanted to walk towards the Governor's Office building from another direction. Security forces which were informed about the protest in advance took the necessary safety measures.

19.  A group of about 800 people formed with the participation of various non-governmental organizations assumed marching formation and started to march towards the Governor's Office building with banners in their hands in order to make a press statement. 

20.  The group continued with its march until the police barriers in front of the Metropolitan Municipality building. There, the police issued warnings that the group would not be allowed to march to the Governor's Office building and that the march should be stopped. According to the incident minutes of 28/3/2012 as issued by the police, the group ignored the warnings and started to shove the staff on duty and take down the barriers with the sticks they were holding. The riot police first tried to stop the group by forming a barricade using their shields, but when some individuals in the group threw shards of glass, pavement stones and full water bottles at them, they started to respond to the attacking group.  The police responded to the demonstrators with pressurized water, painted water, pepper gas and riot response vehicles (TOMA). Meanwhile, a police officer injured his foot.

21.  Simultaneously with the group that tried to go beyond the police barricade, another group attempted to reach the Governor's Office building using another route. However, the police took measures against the group's march to the group to the Governor's Office, pointed to an alternative route for them and asked them to go to the SSI building where the other group was. The group thereupon started to march towards the road blocked by the police; meanwhile there was a brief clash between the police and the group and the police prevented the march by using gas.  Then the group changed its route and started to march towards the SSI building and joined the other group there.

22.  Swelling to two thousand people, the group started a sit-in protest in front of the SSI building. As a result of the negotiations between the union representative who organized the demonstration and the security forces, the police barricade was retracted by 50 meters and the demonstrators were allowed to make a press statement. Those who attended the demonstration broke up at around 16:30.

23.  In relation to the demonstration march held on 28/3/2012 (the second protest), the statements of the applicants Ali Rıza Özer, Özcan Çetin and Orhan Bayram and some other attendees were taken as the suspects for the crimes of opposing to the Law No. 2911 and of preventing the officers from fulfilling the duties.

24.  During the intervention in the incidents, the applicants were injured or were exposed to pepper gas. The medical reports of the applicants are as follows:

                           i.        In the forensic examination report of 28/3/2012 for Ali Rıza Özer, the applicant, it was stated that there was hyperemia, sensitivity, edema and deformity on the dorsum of the nose, a 2 cm cut on the skin in addition to a fractured bone in the nose, a 2 cm cut in the inner side of the lower lip, ecchymosis on the upper lip, a new rupture on the left tympanic membrane, that there was a loss of hearing ability in the left ear during the audiological examination, that there was no threat to his life and that it would be appropriate for him to undergo a checkup six months later in terms of permanent scars and traces on his face. Furthermore, a temporary incapacity report for a total of nine days was handed over to the applicant.

                        ii.        In the forensic examination report of 28/3/2012 for Özcan Çetin, the applicant, it was stated that pepper gas was sprayed to his eye, that there was burning and stinging in the eye, that there was redness in the eye and that drugs were administered.

                      iii.        The Applicant Orhan Bayram was given a two-day temporary incapacity report on 28/3/2012 upon his complaint of pain in the right shoulder as a result of a fall. In later examinations for the applicant, minimally displaced avulsion fracture was spotted in his right shoulder.

                       iv.        In the temporary forensic examination report of 28/3/2012 for Veli İmrak, the applicant, it was stated that there was a 2-3 cm cut in the area with hair on the left side of his head, that there was no threat to his life, that he was injured in a way that would be cured with a simple medical intervention.

                         v.        In the single physician report of 28/3/2012 for Tunay Özaydın, the applicant, it was stated that there was trauma on his right wrist and it was appropriate for him to have a three-day rest.

                       vi.        In the forensic examination report of 28/3/2012 for Deniz Doğan, the applicant, it was stated that there was a 0.5 cm skin laceration, ecchymosis and soft tissue swelling on the left side of the dorsum of the nose.

25.  Through their petitions with the order date of 2/4/2012, the applicants filed their complaints for the crimes of restraining of their democratic rights, misconduct through the exercise of disproportionate force and willful injury for the two separate incidents that took place on 27-28 March 2012. 

26.  In relation to the applicants’ complaint, two separate investigations were conducted by İzmir Chief Public Prosecutor's Office for the crimes of exceeding the limits of authority to exercise force and misconduct.

27.  In the investigation file of İzmir Chief Public Prosecutor's Office No. 2012/31529, permission for investigation was requested within the scope of the Law on the Trial of Public Servants and Other Public Officials No. 4483 of 2/12/1999 for the crime of misconduct in relation to the Provincial Security Director of İzmir and other officials of the Provincial Security Directorate due to the barring of the applicants' attempts to go to Ankara and the barring of their march in order to make a press statement against this barring at İzmir Konak Square on the very same day and in front of İzmir Metropolitan Municipality the next day.   

28.  Through its letter of 4/7/2012, İzmir Governor's Office reminded that a decision was made not to process complaints with the decision of 22/5/2012 of the Chief Public Prosecutor's Office of the Court of Cassation in relation to the complaint lodged regarding the Governor of İzmir, Provincial Security Director of İzmir and other officials of the Provincial Security Directorate and therefore decided in the light of this decision not to grant permission for investigation. It was stated in the reasoning of the decision "that the allegations were not based on substantial information and documents, that there was no situation which constituted a crime in terms of those concerned nor required the conduct of a preliminary examination". 

29.  The objection that the applicants lodged against the said decision was rejected through the judgment of the Regional Administrative Court of İzmir of 16/10/2012. Thereupon, the Chief Public Prosecutor's Office decided on 26/11/2012 that there were no grounds to make an examination in relation to those complained about since there was not a due permission for investigation and the condition for investigation had not been realized.  

30.  In relation to their injuries caused by the disproportionate force exercised by the police (see § 24), the applicants lodged complaints against the officials of the Provincial Security Directorate of İzmir for the crime of inflicting injury by exceeding the limits of the authority to exercise force. In the expert report of 11/12/2012 issued within the scope of the investigation No. 2012/43793 initiated by Chief Public Prosecutor's Office of İzmir, it was acknowledged that the response by the security forces during the march of KESK and Eğitim-Sen managers and members on 27-28/3/2012 remained within the scope of the legal authority to exercise force and it was decided on 1/3/2013 that there were no grounds for prosecution.  

31.  The expert report of 11/12/2012 is as follows:

“(Protest No. 1) It was determined that the camera records started at 22:51, that the group first blocked the bus, the documents of which were taken for examination, from moving, that they hit the road at 23:00 and closed the road to traffic, that they continued their protest by way of sitting on the road at 23:07, that they continued this protest until 23:17, that they then opened the road to traffic and started to wait by the İzmir Metropolitan Municipality until 01:23. It could be seen that the group started to march towards Fevzipaşa Boulevard after M.B., one of the suspects, at 01:23 stated that “If they do not let us go to Ankara by vehicles, we will go to Ankara on foot. We will duly form our cortege and go to Ankara”. They arrived at the entrance of Fevzipaşa Boulevard in a way that the road was completely open at first and then only one lane was open, that, at that point, a barricade was formed by the Riot Police teams using shields, that a brief clash (due to poor video recording, no other perception than a clash was formed and it was not possible to identify) took place while the group attempted to go beyond the barricade, that a waiting period took place due to the fact that the security forces did not allow the continuation of the march, that, meanwhile, the group was warned through a sound system frequently in order for them to break up but the group did not break up, that at around 02:00 the group returned to the direction where SSI provincial building was at, that, between the start and finish of video images, slogans were shouted as “We will drown fascism in the blood it spilled”, “Damn the fascist dictatorship”, “Reactionary, fascist, public enemy AKP”, “Pressure cannot dismay us”, “Everywhere is Ankara, resistance is everywhere”, “There is no salvation alone; either all of us or none of us”, “Damn the AKP dictatorship”, “Rights are not vested but taken, victory is won on the streets”, “We will resist, resist and win”, “Shoulder to shoulder against fascism”, “Our right to travel cannot be barred” and “Long live our organized struggle”.

(Protest No. 2) It was determined that speeches were delivered and slogans were shouted through the sound system located on the back of a small truck, that the individuals within the group carried posters that read “Reactionary, fascist, public enemy AKP” and “No to a vindictive youth”, that the slogans “Resign Tayyip”, “Shoulder to shoulder against fascism”, “The day will come, the fate will change and AKP will answer to people”, “We will not surrender to darkness”, “Long live the solidarity of classes”, “Long live the revolutionary solidarity”, “Victory will belong to the resisting laborers”, “Laborers will ask for an answer from AKP”, “There is no salvation alone; either all of us or none of us”, “Rights are not vested but taken, victory is won in the streets”, “Charge, laborers and remove the barricade”, “Let the police terrorism withdraw”, “Damn with the AKP dictatorship”, “Police, bug off, these streets belong to us”, “Here is AKP, here is fascism”, “No barricades for educators but for gangs”, that the group coming from the direction of Konak Metro and carrying banners of Eğitim-Sen İzmir Branch No. 4 was stopped by the security forces at the entrance of Konak Square, that they were warned they could follow Mustafa Kemal Boulevard on the coast and cross the overpass at the entrance of Cumhuriyet Boulevard to go to İzmir Metropolitan Municipality, that some people in the group said things such as that the destination was closer to the point they were present at, that the group and the security forces forming the barricade had some talks, that the group changed direction and turned towards Konak Pier, that, meanwhile, the group carrying the banner of Eğitim-Sen İzmir Branch No. 2 came to the same point, that they moved towards the point where the barricade was, that there were negotiations between the union managers and the security forces but they did not yield any results and that the collective charge on the barricade by the group was responded to by the security forces, that some persons in the group hit the security forces with fists and kicks, that the barricade was firstly broken but then recovered and reconstructed, that a response was given using pepper gas in a proportionate manner while the group made another attempt to break the barricade, that the group turned to the indicated route but this time closed two lanes of the four-lane road to traffic as they turned to the indicated direction by moving on the vehicle road, that this action was only taken by those walking at the front of the group, that the group then joined the other groups in front of the SSI provincial building, that, while these incidents took place, some of the barricades formed in front of the SSI provincial building were broken by the groups, that, meanwhile, some persons including the suspects were identified, that security forces tried to make the persons disperse by way of spraying pressurized water from Toma vehicles, that the same action was repeated shortly after and that security forces tried to break up the persons by spraying pressurized water and gas water from Toma vehicles (in line with the information obtained from the contents of the file),

that, after all the groups joined, union representatives would do a sit-in protest in front of İzmir Metropolitan Municipality and thus they requested that the barricade be retracted, that their request was later accepted and the group broke up after they did the sit-in protest."

32.  In the expert report, no determination was made regarding the applicants Veli İmrak, Tunay Özaydın and Deniz Doğan. Yet, it was determined that Özcan Çetin caused the traffic to slow down in the first protest and led the group in the second protest, that Ali Rıza Özer caused the traffic to slow down in the first protest and pushed the barricade in the second protest, that Orhan Bayram caused the traffic to slow down in the first protest and hit the riot police officers with the flagpole he had in his hand and then threw the flagpole to the police in the second protest. No evaluation was made in the expert report and the said decision of the Chief Public Prosecutor's Office as to how the applicants' injuries occurred and it was stated in the report and the decision that the police exercised proportionate force.

33.  The objection that was lodged against the said decision was rejected with the judgment of the 1^st Assize Court of Karşıyaka of 16/4/2013. The applicants were informed about the judgment on 6/5/2013.

34.  Within the scope of the summary record issued by the police, a criminal case was lodged at İzmir 7^th Criminal Court of First Instance against 68 people including the applicants Ali Rıza Özer, Özcan Çetin and Orhan Bayram through the indictment of 2/4/2013 and No. Investigation 2012/43840 of İzmir Chief Public Prosecutor's Office in order for them to be punished for the crime of "Attending Illegal Meetings and Marches Unarmed and Not Breaking Up Despite Warnings" within the scope of the second protest that started on 28/3/2013 around 12:00. The first protest was not mentioned in the indictment.

35.  It is understood that the court rendered its decision through its judgment of 9/12/2013 that there were no grounds for imposing punishment as per the last sentence of Article 32(3) of the Law No. 2911, providing the justification that,

“… although a criminal case was lodged before our court against the defendants on the request that they be punished due to their engagement in behaviors that were contrary to the Law No. 2911 on Meetings and Demonstration Marches, in accordance with the prosecution being held, the defenses and statements taken and the minutes and documents within the file and particularly the contents of the expert reports on the analysis of crime scene images regarding the incident, there are no grounds to impose punishment on the defendants as per the last sentence of Article 223/4/d of the CCP with reference to the last sentence of Article 32(3) of the Law No. 2911 due to the occurrence of the protests that were partly reflected in the minutes and partly determined through CD analysis after the security officers built a barricade in a way to prevent the passage of the crowd including the defendants, which had gathered in order to make a press statement on the law commonly known as 4+4+4 so as to walk to the area in front of İzmir Metropolitan Municipality where the statement would be made, from the section between İzsu and İzmir Metropolitan Municipality building on the ground that the group would have walked to the Governor's Office building and therefore barred the group's passage from that point”.

36.  A criminal case was lodged before İzmir 2^nd Criminal Court of First Instance against 35 people including the applicants Orhan Bayram and Ali Rıza Özer through the indictment of 9/8/2012 and Investigation No. 2012/56697 of İzmir Chief Public Prosecutor's Office in order for them to be punished for the crime of resisting to prevent the fulfillment of duty.

37.  Through its judgment of 18/7/2013, the court made a decision of acquittal on the ground that "convincing and conclusive evidence on the fact that the defendants committed the alleged crime could not be obtained".  The judgment was finalized without being appealed.

B.     Relevant Law

1. National Law

38.  Article 3(1) of the Law No. 2911 is as follows:

"In accordance with the provisions of this Law, everyone has the right to organize meetings and demonstration marches, for specific purposes not considered as an offence by laws, unarmed and free of aggression and without getting prior permission."

39.  The version of Article 6 of the same Law before being amended by the Law No. 6529 of 2/3/2014 is as follows:

“Meetings and demonstration marches can be held anywhere within the borders of all provinces and districts on the condition that the following provisions are abided.

The squares and open spaces or roads in cities and towns and other places deemed necessary where meetings or marches can be held and the gathering and break out places for such meetings and marches and the roads and directions to be followed shall be decided by the governors and district governors and be announced in advance via the customary tools. The amendments to be done later regarding these places shall be valid fifteen days after the announcement.  In determining the meeting places, spaces where meetings are generally held in a way not to hinder arrival and departure, disrupt security and prevent the establishment of markets and where there is power installation shall be preferred."

40.  Article 22 of the same Law is as follows:

“Meetings cannot be held on public roads and in parks, sanctuaries, buildings and facilities where public services are delivered and their annexes and within a distance of one kilometer to the Grand National Assembly of Turkey and demonstration marches cannot be held on intercity roads.

In meetings at public squares, it shall be obligatory to abide by arrangements to be made by the governor's offices and the district governor's offices in order to ensure the passage of people and transportation vehicles."

41.  Article 23 of the same Law is as follows:

“Meetings and demonstration marches shall be deemed illegal if they are held; a) Without submitting a notification in a way that conforms to the provisions of Articles 9 and 10 or before and after the day and hour that are specified for the meeting or march;

b) (Amended clause: 30/7/1998 - 4378/1 art.) By attending meetings and demonstration marches carrying firearms or explosive materials or all kinds of cutting, piercing tools or bruising and suffocating tools such as stones, sticks, iron and plastic bars or incendiary, corrosive, injurious drugs or all other kinds of poisons or all kinds of smoke, gas and similar substances and emblems and signs belonging to illegal organizations and groups or by wearing clothes resembling a uniform with such signs and emblems or by covering their faces completely or partially with elements such as cloth and so on in order to conceal their identity and by carrying posters, bills, placards, pictures, boards, tools and materials that have a quality which is considered an offence by laws or by chanting slogans with such a quality or by airing through sound devices,    

c) Without observing the provisions of Article 7,

d) Outside the places that are stated as per Articles 6 and 10,

e) Without respecting the methods and conditions in Article 20 and the bans and measures in Article 22,

f) By violating own purposes, rules and limits in subject matters that are left outside the scope of the Law through Article 4,

g) For purposes that are deemed to be a crime by laws,

h) By violating the purpose that is specified in the notification,

i) Before the end of the postponement or prohibition period that is specified in the event that the meeting and march are prohibited or postponed on the basis of Articles 14, 15, 16, 17 and 19,

j) (Amended clause: 2/3/2014 - Law No. 6529 / Art. 9) In the event that the break out of the meeting is decided as per Article 12,

k) In violation of the provision of Article 21,

l) Without observing the provision of Article 3(2).”

42.  The version of Article 24 of the same Law before being amended by the Law No. 6529 is as follows:

“If a meeting or demonstration march that starts in compliance with the law but later turns into a meeting or demonstration march which is contrary to Law due to the occurrence of one or some of the conditions that are contrary to law as specified in Article 23:

a) The government commissioner shall announce to the group in person or through the organization committee that the meeting or demonstration march is over and notify the situation to the highest civilian official in the locality through the fastest means.

b) Through a written order or, in urgent cases, a verbal order on the condition that it be confirmed in writing later, the highest civilian official in the locality shall delegate the security officials in the locality or one of them and send them to the scene.

Such developments shall be established by the government commissioner through minutes and be submitted to the highest civilian official in the locality within the shortest time possible.”

43.  Article 32 of the same Law is as follows:

"(Amended article: 22/7/2010 - C.N. 6008 /Art. 1) If those who attend illegal meetings and demonstration marches insist not to break up despite warning and use of force, they shall be punished with an imprisonment of six months to three years.  If those who organize the meetings and demonstration marches commit this crime, the penalty to be imposed as per the provision of this paragraph shall be adjudged to be increased by half.

In the event that the law enforcement is resisted to by force or threats despite warning and use of force, another penalty shall be adjudged due to the offence that is defined in Article 265 of the Turkish Penal Code No. 5237 of 26/9/2004.

In the event that meetings and demonstration marches are broken up by exceeding the authority limit without the occurrence of one of the conditions written in Article 23 or without fulfilling the provision of Article 24, the penalties to be imposed on those who commit the acts written in the above paragraphs may be applied by being reduced down to one quarter or imposing a penalty may be abandoned at all.”

44.  Article 16 of the Law on the Duties and Responsibilities of the Police No. 2559 of 4/7/1934 is as follows:

“In the event that the police face resistance while fulfilling their duty, they shall be entitled to use force in order to break this resistance and at an extent to break it. 

Within the scope of the authority to use force; bodily power, physical force and, if legal conditions are met, guns may be employed gradually and incrementally in a way to subdue the resisters and in accordance with the nature and extent of resistance.

As included in paragraph two;

a) Bodily power shall mean the body power that the police directly exert against the resisters or on things,

b) Physical force shall mean the handcuffs, truncheons, pressurized water, tear gases or powders, physical barriers, police dogs and horses and other service tools that the police directly exert against the resisters or on things except for the bodily power. 

Before use of force, the people concerned shall be given a warning that direct force will be used if they continue to resist. However, considering the nature and extent of the resistance, force may be used without giving a warning.

The police shall appraise and determine the tools and materials they will use and the extent of the force they will use in order to subdue resistance within the scope of the authority to use force. However, in the cases which are intervened in as a collective force, the extent of use of force and the tools and materials to be used shall be determined and set by the head of the intervening force.

In the face of an assault against themselves or against someone else, the police shall defend within the framework of the provisions of the Turkish Penal Code No. 5237 on self-defence without abiding by the conditions on use of force.

The police shall be entitled to use guns;

a) within the scope of the exercising of the right to self-defence, 

b) In the face of resistance that they cannot subdue through the use of bodily power and physical force, in order to break this resistance and to an extent to break it,

c) In order to ensure and at an extent to ensure the arrest of persons against whom a decision of detention, custody or bringing by force or a writ of arrest was issued or of the suspect in cases of in flagrante delicto.

Before using their guns within the scope of sub-paragraph (c) of paragraph seven, the police shall issue a warning saying 'stop' in a way that the person can hear. In the event that the person does not comply with this warning and continues to run, it may be possible to fire with the gun in order to issue an advance warning. In the event that his arrest will not be possible due to his insisting on running away despite this, it may be possible to fire with the gun in order to ensure and to an extent to ensure the arrest of the person. 

In the event that an armed assault is attempted against the police while they exercise their authority to use force or guns in order to break the resistance or make an arrest, they can fire at the person attempting the armed assault with guns, without hesitation and to an extent to subdue the threat of assault.

45.  The plans that need to be prepared in relation to the meetings and demonstration marches, the principles to be taken into consideration in the implementation of these plans, the measures that need to be taken before meetings and demonstration marches, the tactics, formation and general principles to be applied during the intervention in illegal meetings and demonstration marches and the procedures to be fulfilled after the intervention are determined in the "Directive on Procedures and Principles of Action by the Staff Assigned to Riots" of 25/8/2011 as published by the Ministry of Interior.

46.  How lacrimatory substances shall be used during the interventions in riots is specified in detail in the "Operating Instructions for Tear Gas Guns and Ammunition" prepared within the framework of the Circular on "Tear Gas Guns and Ammunition" No. 19 of 15/2/2008 by the Turkish National Police. 

2. International Documents

47.  As per the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction ("CWC") of 13/1/1993, tear gas is not considered to be a chemical weapon and the use of such kinds of gases is allowed for the purpose of establishing public order including the control of civil commotion (Article II § 7, 9 (d)). CWC entered into force in Turkey on 11/6/1997.

48.  The relevant parts of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (The Eighth United Nations (UN) Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27/8/1990 - 7/9/1990, UN, A/CONF.144/28/Rev.1, 1990, p. 112-115) are as follows:

“3.  The development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled.

(...)

5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:

(a)  Exercise restraint in use of such tools and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;

(b) Minimize damage and injury, and respect and preserve human life;

(c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment;

(d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment.

(...)

9. Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms should only be made when strictly unavoidable in order to protect life.

(...)

12. As everyone is allowed to participate in lawful and peaceful assemblies, in accordance with the principles embodied in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, Governments and law enforcement agencies and officials shall recognize that force and firearms may be used only in accordance with the provisions of principles 13 and 14.

13. In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.

14. Law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary.  Law enforcement officials shall not use firearms in such cases, except under the conditions stipulated in principle 9."

49.   Article 35 of the Report prepared by the UN Special Rapporteur on the Right to Freedom of Peaceful Assembly and Association (UN Human Rights Council A/HRC/20/27, 21/5/2012) is as follows:

“35. With regard to the use of tear gas, the Special Rapporteur recalls that gas does not discriminate between demonstrators and non-demonstrators, healthy people and people with health conditions. He also warns against any modification of the chemical composition of the gas for the sole purpose of inflicting severe pain on protestors and, indirectly, bystanders."

50.  European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("CPT") stated its concerns on the use of such gases in law enforcement.  The opinion of CPT is as follows:

“(…) Pepper spray is a potentially dangerous substance and should not be used in confined spaces. Even when used in open spaces the CPT has serious reservations; if exceptionally it needs to be used, there should be clearly defined safeguards in place. For example, persons exposed to pepper spray should be granted immediate access to a medical doctor and be offered an antidote. Pepper spray should never be deployed against a prisoner who has already been brought under control." (CPT/Inf (2009) 25).

51.  CPT made the following recommendations in its reports regarding the visits paid to some Member States of the European Council:

“(…) [A]  A clear directive drawn up for governing the use of pepper spray should include, as a minimum:

- clear instructions as to when pepper spray may be used, which should state explicitly that pepper spray should not be used in a confined area;

-  the right of prisoners exposed to pepper spray to be granted immediate access to a doctor and to be offered measures of relief;

- information regarding the qualifications, training and skills of staff members authorized to use pepper spray;

- an adequate reporting and inspection mechanism with respect to the use of pepper spray (...)" (see CPT/Inf (2009) 8.)

IV. EXAMINATIONAND GROUNDS

52.  The individual application of the applicants (App. No: 2013/3924 of 31/5/2013) was examined during the session held by the court on 6/1/2015 and the following were ordered and adjudged:

A. The Applicants' Allegations

53.   The applicants stated that, upon the start of deliberations at the GNAT on the “Bill on the Amendments to the Law of Primary Education and Education and Certain Laws”, they wanted to collectively travel to Ankara from Izmir in order to make a mass press statement in Ankara on March 28-29, 2012, however, that the law enforcement officers in Izmir did not allow the departure of buses after Ankara Governor's Office banned the holding of a mass press statement and demonstration march, that the group which started a march in protest of this was dispersed through the use of disproportionate force.

54.  On the other hand, the applicants stated that they met the next day in order to protest their departure to Ankara and the said deliberations on the bill, however, that the group was disproportionately intervened by the law enforcement which had been prepared in advance and, as a result, that applicants Ali Rıza Özer, Özcan Çetin and Veli İmrak were injured during the intervention.

55.  The applicants alleged that the rights to the protection of the corporeal and spiritual integrity of the person, the freedom of thought and conviction and the right to organize meetings and demonstration marches as defined in Articles 17, 25, 26 and 34 of the Constitution were violated due to the prevention of demonstrations in both protests and the use of disproportionate force by the police during the demonstrations held and the failure to run an efficient investigation against the responsible people.  

B. The Constitutional Court’s Assessment

56.  The applicants alleged that the police's barring their attendance to the meeting which was to be held in Ankara in order to make a mass press statement against the bill that introduced changes to the education system, and the police intervention as they started to march in order to make a press statement against that barring at İzmir Konak Square on the very same day and in front of İzmir Metropolitan Municipality the next day violated the freedom of thought and conviction and the right to organize meetings and demonstration marches as defined in Articles 25, 26 and 34 of the Constitution. Furthermore, they alleged that their injuries due to the disproportionate nature of the physical intervention by the police was considered mal-treatment as per Article 17(3) of the Constitution. 

57.  The applicants’ claims that the freedom of thought and conviction as defined in Articles 25 and 26 of the Constitution were also violated were examined in consideration of the nature of the application whereas their claims on the right to organize meetings and demonstration marches as regulated in Article 34 of the Constitution and their injuries by police intervention were examined within the framework of the prohibition of mal-treatment as per Article 17(3) of the Constitution.

1. Admissibility

58.  No assessment was made in the Ministry's opinion as to the admissibility of the individual application.

59.  Article 47(5) of the Law on the Establishment and Rules of Procedures of the Constitutional Court No. 6216 of 30/3/2011 with the side heading ''Individual application procedure'' is as follows:

“The individual application should be made within thirty days starting from the exhaustion of legal remedies; from the date when the violation is known if no remedies are envisaged…”

60.  In relation to the first and second protests that are the subject matters of individual application, the applicants filed a complaint to Izmir Chief Public Prosecutor's Office on  2/4/2012 against the Provincial Police Director of Izmir and the relevant department heads and police officers as a whole without separating the protests for the crimes of "preventing the exercise of their democratic rights, malpractice through the use of disproportionate force collectively, willful injury by a public officer through the misuse of influence". In their complaint petition, the applicants mentioned the prevention of their departure for Ankara and the following physical intervention by the police in relation to the first protest whereas they mentioned the harsh intervention by the police during the demonstration march in relation to the second protest.

61.  Indicating the complaints of the applicants in relation to the first and second protests, evaluating both protests as a whole and since the investigation procedure for the crime of misconduct is different, the Chief Public Prosecutor's Office decided in its decision (File No:No. K.2012/848 of 9/5/2012) upon the said complaint petition on the separation of the case in terms of the exceeding of the limit regarding the authority to use force. No distinction was made in terms of acts in the decision and the crime of misconduct was evaluated as a whole.  As a matter of fact, in the decision of the Public Prosecutor's Office of 26/11/2012 indicating that there are no grounds for examination in relation to the crime of misconduct (see §§ 27- 29), both protests are evaluated as a whole and it was stated that an authority for investigation was not granted for the crime of misconduct regarding all incidents that took place within the two days.

62.  On the other hand, during the investigation in relation to the crime of exceeding limits of the authority to use force, the Public Prosecutor’s Office decided that there were no grounds for prosecution as a result of investigation, pointing out the interventions taking place during both protests as a whole (see § 29). The objection that was lodged against the decision was rejected by the 1^st Assize Court of Karşıyaka on 16/4/2013. The applicants were informed on the judgment on 6/5/2013 and filed an individual application on 31/5/2013. Therefore, the first and second protests were accepted as a whole by the applicants and Izmir Chief Public Prosecutor’s Office. In this case, it should be accepted that a healthy evaluation of the individual application depends on accepting the first and second protests as a whole. Nevertheless, it is evaluated that the legal remedies were exhausted following the said decision by the Chief Public Prosecutor’s Office, accepting the complaints to be lodged before judicial bodies in relation to the interventions that took place during the meetings and demonstration march and the resulting injuries as a whole as an application regarding the right to meetings and demonstration marches and the prohibition of mal-treatment (for similar ECtHR judgments, see Pekaslan v. Turkey, App.No. 4572/06 and 5684/06, 20/3/2012; Özalp Ulusoy v. Turkey, App.No: 9049/06, 4/6/2013; Oya Ataman v. Turkey, App.No: 74552/01, 5/12/2006, Gazioğlu and others v. Turkey, App.No: 29835/05, 17/5/2011; Biçici v. Turkey, App.No: 30357/05, 27/5/2010; Balçık and others v. Turkey, App.No: 25/02, 29/11/2007). In this scope, in the present case, the application was filed in due time after the remedies were exhausted.

63.  Although the applicants Tunay Özaydın and Deniz Doğan filed complaints before Izmir Chief Public Prosecutor’s Office in relation to the injuries they incurred during the intervention (see § 24), since there are no allegations regarding the injury of the applicants Tunay Özaydın and Deniz Doğan in the response to the application form and the subsequent deficiency notification, a separate examination regarding the incidents that caused the injury of these persons was not conducted in terms of the prohibition of mal-treatment.  

64.  It needs to be decided that the applicants’ application concerning that the prohibition of mal-treatment defined in Article 17(3) of the Constitution and the right to meetings and demonstration marches regulated in Article 34 of the Constitution were violated is admissible as it is not manifestly ill-founded and there is no other reason to require a decision that it is inadmissible be delivered. Judge Serdar ÖZGÜLDÜR did not agree with this opinion in terms of Article 34 of the Constitution.

2. Merits

a. The Allegation of Violation of Prohibition of ill treatment

65.  Article 17(1) and (3) of the Constitution is as follows:

“Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.

...

No one shall be subjected to torture or mal-treatment; no one shall be subjected to penalties or treatment incompatible with human dignity.

66.  Article 3 of the European Convention on Human Rights (Convention) with the side heading “Prohibition of Torture” is as follows: 

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

67.  The applicants alleged that during the second protest they held on  28/3/2012, they wanted to democratically exercise their rights to expression and reaction against the bill and the prevention of their departure to Ankara, but they were injured during the harsh intervention by security forces which had been prepared in advance (see 24) and, in their complaint in relation to this, that a judgment of non-prosecution was rendered by Izmir Chief Public Prosecutor’s Office without conducting an effective investigation, without even identifying the perpetrators.

68.  In the Ministry’s opinion, two separate evaluations in terms of merits and procedures were made in relation to the applicants' injuries. In the evaluation in terms of merits, it was stated that a healthier evaluation on whether the intervention was proportionate or not could be made when the images and the expert report in relation to the incident were examined. In the evaluation in terms of procedures, it was stated that the required investigations were conducted against the security forces that intervened with the applicants and that, as a result, it was decided that there were no grounds for prosecution.

69.  In their counter-opinions with the order date of 9/4/2014 that they submitted against the Ministry opinion, the applicants stated that the protest held aimed at peacefully attracting the attention of the public to the bill, that, therefore, it was not possible to accept the use of excessive force. Furthermore, it was stated that the Ministry opinions that an investigation was held regarding the claims of mal-treatment were not convincing.

70.  The examination of complaints in relation to the prohibition of mal-treatment needs to be handled separately for material and procedural dimensions in connection with the negative and positive responsibilities of the state. Therefore, the complaints of the applicants in the present case will be evaluated separately in terms of the material and procedural liabilities of the state within the scope of Article 17(3) of the Constitution.

i. The Allegation that the Material Dimension of Article 17 of the Constitution was Violated

71.  The applicants stated that the demonstration march held against the bill and against the prevention of their departure to Ankara had a peaceful nature and that the intervention made by security forces was groundless, harsh and disproportionate.

72.  Everyone's right to protect and develop their corporeal and spiritual existence is guaranteed in Article 17 of the Constitution. Protection of human dignity is aimed at in paragraph one of the said Article. In paragraph three, it is also provided that no one can be subjected to "torture" or "torment", that no one can be subjected to a penalty or treatment which is "incompatible with human dignity". (B. No: 2013/293, 17/7/2014, § 80).

73.  The liability of the state to respect the right of the individual to protect and develop his corporeal and spiritual existence requires that, firstly, public authorities must not intervene in this right, in other words, not cause any physical and mental injury to persons in ways that are stated in paragraph three of the said Article.  This is the negative duty of the state, arising from the protection of bodily and mental health (B. No: 2013/293, 17/7/2014, § 81).

74.  Article 17(3) of the Constitution and Article 3 of the Convention do not set forth any limitation and state the absolute nature of prohibiting torture, inhuman and degrading treatment or punishments.  The absolute nature of the prohibition of mal-treatment does not set forth an exception even in the event of a war or another general threat threatening the existence of a nation as stated within the scope of Article 15 of the Constitution. In the same manner, no exception is set forth in relation to the prohibition of mal-treatment through a similar regulation within the scope of Article 15 of the Convention (see Selmouni v. France [BD], App. No 25803/94, 28/7/1999, § 95; Assenov and others v. Bulgaria, App. No: 24760/94, 28/10/1998, § 93).

75.  On the other hand, in order for a treatment to fall into the scope of Article 17(3) of the Constitution, it needs to have attained a minimum level of gravity. This minimum threshold is relative and whether the minimum threshold is exceeded or not should be evaluated by taking into consideration the circumstances of the present case. In this context, factors such as the duration of treatment, the physical and mental effects thereof and the gender, age and health status of the aggrieved bear importance (App. No: 2012/969, 18/9/2013, § 23). The purpose and intention of the treatment and the reason behind may also be added to these elements that will be taken into consideration (for similar ECtHR judgments, see Aksoy v. Turkey, App. No: 21987/93, 18/12/1996, § 64; Eğmez v. Cyprus, App. No: 30873/96, 21/12/2000, § 78; Krastanov v. Bulgaria, App. No: 50222/99, 30/9/2004, § 53). Furthermore, the determination of whether mal-treatment occurred within a context where excitement and feelings were elevated (see Eğmez v. Cyprus, § 53; Selmouni v. France, § 104) is also another factor that needs to be taken into consideration.

76.  Mal-treatment is graded and described in different concepts by the Constitution and the Convention considering the effect thereof on the person. Therefore, it is seen that there are some differences of intensity between the statements present in Article 17(3) of the Constitution. In order to identify whether a certain treatment can be qualified as "torture" or not, it is necessary to observe the difference between the concepts of "torment" and "incompatible with human dignity" and torture as mentioned in the said paragraph.  It is understood that this distinction was introduced by the Constitution specifically in order to draw attention to the special situation in deliberate inhuman treatment which causes very grave and cruel pain and to do a sort of grading and that the said statements have a broader and different meaning than the elements of the crimes of "torture", "torment" and "insult" which are regulated by the Law No. 5237 (B. No: 2013/293, 17/7/2014, § 84).

77.  Accordingly, it is possible to identify treatment that causes the greatest harm to the corporeal and spiritual integrity of the person within the context of constitutional regulation as "torture" (App. No: 2012/969, 18/9/2013, § 22). 

78.   Inhuman treatment which does not extend to the level of “torture” but is premeditated, applied for hours within a long period of time and caused physical injury or intensive corporeal or spiritual suffering can be defined as "torment" (App. No: 2012/969, 18/9/2013, § 22). In such cases, the pain that occurs must go beyond the pain that is inherent as an inevitable element in a legitimate treatment or punishment. Unlike torture, the intention of inflicting suffering in line with a specific purpose is not sought in "torment". (For a similar ECtHR judgment, see Ireland v. United Kingdom, App. No: 5310/71, 18/1/1978, § 167; Eğmez v. Cyprus, § 78). The ECtHR considers treatment such as physical attack, battery, psychological interrogation techniques, keeping someone in bad conditions, deporting or extraditing the person to a place where he will suffer from mal-treatment, a person getting lost under state supervision, a person's home being destroyed, fear and concern caused by waiting for a long time for the execution of death penalty, child abuse to be "inhuman treatment" (see Ireland v. United Kingdom; App. No: 5310/71, 18/1/1978; Ilaşcu and others v. Moldova and Russia, [BD], App. No: 48787/99, 8/7/2004, §§ 432-438; Soering v. United Kingdom, App. No: 14038/88, 7/7/1989, § 91; Jabari v. Turkey, App. No: 40035/98, 11/7/2000, §§ 41-42; Giusto v. Italy, App. No: 38972/06, 15/5/2007). The treatment with such nature can be qualified as "torment" within the context of Article 17(3) of the Constitution.

79.  It is possible to define lighter treatment that arouses feelings of fear, humiliation, grief and degradation in the aggrieved in a way to possibly humiliate and embarrass them or has a degrading quality which draws the aggrieved to act contrary to his own will and conscience as treatment or punishment that is "incompatible with human dignity" (For a similar judgment, see App. No: 2012/969, 18/9/2013, § 22). In this definition, unlike "torment", the treatment the person receives has a humiliating or degrading effect rather than physical or mental pain (B. No: 2013/293, 17/7/2014, § 89).

80.  In order to identify which of these concepts a specific treatment constitutes, each case needs to be evaluated within its own special circumstances. Although the fact that the treatment was perpetrated publicly plays a role in whether it is of a degrading aspect and is in conflict with human dignity or not, in some cases it may suffice for mal-treatment at such a level that the person is humiliated in his own eyes. (For a similar ECtHR judgment, see Pretty v. United Kingdom, App. No: 2346/02, 29/4/2002, § 52). Furthermore, although it is taken into consideration whether the treatment was perpetrated with an intention to humiliate or degrade, not being able to determine such a purpose will not mean that there is no violation of mal-treatment. (For a similar ECtHR judgment, see V v. United Kingdom, [BD], App. No: 24888/94, 16/12/1999, § 71).  A treatment can be both inhuman/torment and degrading/incompatible with human dignity (For a similar ECtHR judgment, see Ireland v. United Kingdom).  Every degrading treatment which is incompatible with human dignity may not have the characteristic of being inhuman/torment whereas every kind of torture constitutes an inhuman or degrading treatment. The conditions of detention, the practices against the detainees, the discriminatory behaviors, the insulting statements uttered by the public officials, certain negative circumstances faced by the handicapped people, the degrading treatment such as making the person eat or drink certain things that are not normal may prove to be a kind of treatment that is “incompatible with human dignity” (B. No: 2013/293, 17/7/2014, § 90).

81.  On the other hand, Article 17 of the Constitution and Article 3 of the Convention do not prohibit the use of force in order to make an arrest. However, such force can only be used on the condition that it is inevitable and never excessive (see Ivan Vasilev v. Bulgaria, App. No. 48130/99, 12/4/2007, § 63). Furthermore, such acts will violate the ban stated in Article 3 of the Convention as long as it is not absolutely compulsory to resort to physical force due to the behaviour or attitude of the person himself. In this context, the ECtHR states that the undeniable difficulties peculiar to the fight against crime cannot justify placing limits on the protection to be afforded in terms of the bodily integrity of individuals (see Ribitsch v. Austria, App. No: 18896/91, 4/12/1995, § 38).

82.   Only under certain conditions the limits of which are certain can it be accepted that the security forces’ resorting to physical force is not mal-treatment. In this scope, it is possible to resort to physical force in cases which require arrest in meetings and demonstration marches and due to the respective attitudes of those who attend the demonstration. However, even in this situation, such kind of a force can only be resorted to in inevitable cases and on the condition that it is proportionate.

83.  The claims of mal-treatment need to be supported by appropriate evidence. (For a similar ECtHR judgment, see Klaas v. Germany, App. No: 15473/89, 22/9/1993, § 30). In order to determine that the alleged incidents occurred, the existence of evidence that is far from all kinds of reasonable doubts is needed (see Tepe v. Turkey, App. No: 31247/96, 21 December 2004, § 48). Evidence having such characteristic can also be composed of sufficiently serious, clear and consistent indications or some presumptions, which cannot be proven otherwise. (For similar ECtHR judgments, see Ireland v. United Kingdom, § 161; Labita v. Italy, App. No: 26772/95, 6 April 2000, § 121).

84.  In the present case, the applicants were subject to some injuries that were determined through a doctor’s report (see § 24) and due to the intervention of security forces which was the subject of the investigation conducted by Izmir Chief Public Prosecutor’s Office (see § 30). As a result of investigation, Izmir Chief Public Prosecutor’s Office accepted that the intervention of security forces remained within the scope of the exercise of the legal authority of use of force and rendered a judgment of non-prosecution (see § 30).  In the said decision, any allegation regarding the fact that the injury to the applicants arose from another incident than the intervention was not evaluated.  Therefore, it was accepted that the injury to the applicants occurred through the intervention of security forces.

85.  In terms of the second protest, although a notification was not duly made within the scope of the Law No. 2911 regarding whether the intervention by the security forces was inevitable and excessive or not, it is apparent that the police took the necessary precautions.  The roads leading to the zone where a press statement was planned were secured by many policemen. Consequently, it is not possible to say that the security forces intervened without being prepared given the specific circumstances of the case which is the subject matter of the application (see Rehbock v. Slovenia, App. No: 29462/95, 28/11/2000, § 72). In other words, no finding was encountered regarding the necessity of a sudden intervention by the security forces in order to take the required safety measures when a demonstration march held in an unexpected manner jeopardized the public order. It is understood that the security forces had sufficient time to plan the required measures that could be taken against potential risks.

86.  Two separate groups that wanted to go to the Governor’s Office building in order to make a press statement were stopped at the place where there were two separate police barricades. The request of the groups to make a press statement in front of the Governor’s Office building was not accepted by the police. Some of the people within the first group thereupon attempted to destroy the barriers and go beyond the safety measures (see § 20).  In the same manner, the other group wanted to go beyond the safety measures as well. (see § 21).  In relation to both incidents, it is monitored from camera recordings that only the applicant Orhan Bayram attempted to destroy the police barriers and assaulted the police.  It is observed that the applicant Ali Rıza Özer also attempted to destroy the barriers but retreated, did not attack the police and did not receive any blows after the police intervention. It could not be determined from camera recordings and the expert report that the other applicants actively attempted to go beyond the police barricade or the safety measures.

87.  On the other hand, a judgment of acquittal was delivered by the 2^nd Criminal Court of First Instance of Izmir in the court case lodged against the persons among whom were applicants Orhan Bayram and Ali Rıza Özer and who wanted to continue with the march for the crime of resisting an officer on duty in order to prevent the fulfillment of duty (see §§ 37-38).  Moreover, it could not be determined in the expert report ordered by Izmir Chief Public Prosecutor’s Office that the applicants other than Orhan Bayram engaged in an act which required intervention. The arrest or being taken into custody of the applicants is not the case, either.

88.  It is determined from the expert report (see § 31) and the camera recordings watched that the applicant Orhan Bayram hit the riot police on duty with the flag pole he was holding and then threw the flag pole to the police in order to go beyond the police barricade in the second protest.  In this case, the police intervention against the persons who exert violence is acceptable. However, in any case, the intervention needs to be proportionate and not excessive.

89.  A two-day temporary incapacity report was issued with the report of 28/3/2012 in relation to the injury of the applicant Orhan Bayram upon his complaint of pain in his right shoulder as a result of a fall. In later examinations of the applicant, minimally displaced avulsion fracture was determined in his right shoulder. However, it was not clearly stated in the application form and during the investigation conducted by the Public Prosecutor’s Office where the police intervention that caused the injury of Orhan Bayram took place, just like it is the case in terms of other applicants. It is determined in the camera recordings watched that the police intervention against Orhan Bayram might have occurred as a result of the pressurized water sprayed from TOMA vehicles.  In this scope, it cannot be said that the intervention which led to the injury of the applicant Orhan Bayram, who attempted to go beyond the barriers and attacked the police with a pole, was disproportionate.

90.  In the forensic examination report of 28/3/2012 for Özcan Çetin, the applicant, it was stated that pepper gas was sprayed in his eye, that there was burning and stinging in the eye, that there was redness in the eye and that drugs were administered. It is not specified in the application form nor the investigation documents where and how the injuries of the applicant which were the subject of the doctor’s report occurred. On the other hand, it is not determined from the camera recordings and expert reports that the applicant engaged in any attack against the police. Therefore, it should be accepted that the applicant was affected by the pepper gas during the police intervention against the group which attempted to go beyond the safety measures.

91.  It is apparent that the use of pepper gas may cause some health problems. In the “Information Note on Chemical Weapons Employed ın Riots” published by the Turkish Medical Association, it is stated that the gas employed in Turkey could lead to consequences such as shortness of breath, nausea, vomiting, irritation, and bear graver consequences leading to even death in small children, the elderly, the pregnant and those who have chronic diseases (http://www.ttb.org.tr/index.php/Haberler/kimyasal-3838.html).

92.  It needs to be checked whether the criteria set forth in the procedures for the use of pepper gas, which is regarded as a tool in police intervention in riots and the use of which is not prohibited by national and international legislation, reached the minimum threshold of severity within the scope of Article 17(3) of the Constitution. In the incident that is the subject matter of the application, when the camera recordings were watched and in the application form no direct intervention to demonstrators except for the group that attempted to go beyond the safety measures was determined.  Furthermore, the applicant did not suffer any injuries other than the natural effect of tear gas and no doctor’s report or camera recording regarding the fact that gas was used excessively was determined. Therefore, it cannot be said that the applicant’s being affected by pepper gas exceeded the minimum threshold of severity within the scope of Article 17(3) of the Constitution (for a similar judgment, Oya Ataman v. Turkey, § 25-26).

93.  In the temporary forensic examination report of 28/3/2012 for Veli İmrak, the applicant, it was stated that there was a 2-3 cm cut in the area with hair to the left of his head, that there was no threat to his life, that he was injured in a way what would be cured with a simple medical intervention. It is not specified in the application form or the investigation documents where and how the injuries of the applicant which were the subject of the doctor’s report occurred. On the other hand, it is apparent from the camera recordings and expert reports that the applicant did not engage in any attack against the police. Therefore, it should be accepted that the applicant was injured during the police intervention against the group which attempted to go beyond the safety measures.

94.  In meetings and demonstration marches, it is possible that the persons who attend the demonstration but do not need to be intervened are affected by the intervention during the panic and turmoil that take place during the intervention of the police. In such a case, it is expected that the police act controllably and take required measures to make sure those persons apart from the persons who cause the situation requiring intervention are not affected by the intervention. However, it is necessary to accept the difficulty of the absolute implementation of these measures by the police within the turmoil and panic environment caused by the intervention.  When it is considered that the police only intervened with the persons who attempted to go beyond the barricades in the demonstration to which the applicant attended (see §§ 141-145), that the applicant could be injured then and the injury was of a nature which could be remedied with a simple medical intervention, it cannot be said that the injury of the applicant exceeded the minimum threshold of severity within the scope of Article 17(3) of the Constitution.

95.  When the report regarding the injury of Ali Rıza Özer, the other applicant, is evaluated, considering that it could not be determined that the applicant attacked the police, that arrest and custody procedures were not conducted against him and his injuries was of a severe nature such as a broken nose and loss of hearing, it is understood that the minimum threshold of severity was exceeded. Following this determination, the extent to which the act conducted by the police had reached needs to be evaluated.  In this scope, when the present case is evaluated, considering the points indicated in the report regarding the applicant, of whom no attempt of going beyond safety measures was determined, and who peacefully exercised his freedom of assembly, and considering that the police intervention took place in the form of physical assault and battery against the applicant, it is considered possible that this be regarded as “torment” (see § 79-81).  

96.  Due to the reasons explained, it is concluded that the prohibition of mal-treatment which is guaranteed in Article 17(3) of the Constitution was not violated in terms of merits since the intervention against the applicant Orhan Bayram was proportionate and the injuries suffered by the applicants Özcan Çetin and Veli İmrak did not exceed the minimum threshold of severity.

97.  On the other hand, it is concluded that the prohibition of mal-treatment which is guaranteed in Article 17(3) of the Constitution was violated in terms of the material dimension thereof due to the action that the applicant Ali Rıza Özer was subject to through the intervention of security forces. Judge Serdar ÖZGÜLDÜR has disagreed with this opinion.

ii. The Allegation that the Procedural Dimension of Article 17 of the Constitution was Violated

98.  The applicants alleged that Izmir Chief Public Prosecutor’s Office decided that there were no grounds for prosecution without conducting an effective investigation, without even identifying the perpetrators after the complaint they filed due to the fact they were injured as a result of unfair intervention by the security forces and were therefore subject to mal-treatment.

99.  Within the scope of the right regulated in Article 17 of the Constitution, as a positive liability, the state has the liability to protect the right of all individuals within its jurisdiction to protect their corporeal and spiritual existence against the risks that can stem from the actions of both public instances, other individuals and the individual themselves. The state is liable to protect the corporeal and spiritual existence of the individual from all kinds of dangers, threats and violence (App. No: 2012/752, 17/9/2013, § 51).

100.        This liability of the state is not only relevant to the merits but also covers the procedural dimension. Procedural liabilities are compulsory consequences of the fact that the rights regulated under the Constitution are not theoretical or hypothetical but effective and practicable.  Otherwise, the investigation of the claims on the violation of Article 17 of the Constitution allegedly perpetrated by the police or other public officials would remain ineffective in practice despite the basic and absolute nature of the prohibition of mal-treatment and, in some cases, lead to the fact that some public officials go unpunished (see Assenov and others v. Bulgaria, App. No: 24760/94, 28/10/1998, § 102; Labita v. Italy, App. No: 26772/95, 6/4/2000, §§ 131-136).   Within this framework, the state is obliged to carry out an effective official investigation which can ensure that those who are responsible for all sorts of incidents of physical and spiritual assault that are not natural are determined and punished, if necessary. The main aim of this kind of an investigation is to guarantee the effective implementation of the law that prevents the said assaults and, in the incidents in which public officials or institutions are involved, to ensure that they are accountable for the incidents which occur under their responsibility (For similar ECtHR judgments, see Anguelova v. Bulgaria, App. No: 38361/97, 13/6/2002, § 137; Jasinskis v. Latvia, App. No: 45744/08, 21/12/2010, § 72).

101.        Accordingly, in the event that the individual has a defensible claim that he was subjected, by a public official, to treatment in violation of law and in a way to violate Article 17 of the Constitution, Article 17 of the Constitution requires, when interpreted together with the general liability in Article 5 with the side heading “Fundamental aims and duties of the State”, the performance of an effective official investigation. This investigation should be suitable to identify and punish those responsible. If this is not possible, this Article will become ineffective in practice despite the importance it bears and, in some cases, it will be possible for public officials to take advantage of actual immunity and abuse the rights of the persons who are under their control (B. No: 2012/969, 18/9/2013, § 25; for a similar ECtHR judgment see Corsacov v. Moldova, App. No: 18944/02, 4/4/2006, § 68).

102.        Within the scope of the positive liability of the State, the mere fact that no investigation has been conducted or that an insufficient investigation has been conducted can sometimes constitute mal-treatment. Therefore, no matter what the circumstances are, officials need to take action as soon as an official complaint is filed. Even if no complaint is filed, the initiation of an investigation should be ensured when there are sufficient conclusive indications showing that there is torture or mal-treatment. In this context, it is necessary to immediately start an investigation, to conduct it independently, under public scrutiny and in a meticulous and fast manner and to make sure it is effective as a whole (App. No: 2012/969, 18/9/2013, § 25; for a similar ECtHR judgment, see Batı and others v. Turkey, 33097/96 - 57834/00, 3/6/2004, §§ 133, 134).

103.        The criminal investigations to be conducted should be effective and sufficient so as to allow for those who are responsible to be determined and punished. In order to be able to say that an investigation is effective and sufficient, investigation authorities need to act ex officio and collect all evidence that can enlighten the incident and serve the determination of those who are responsible. Therefore, an investigation required by allegations of mal-treatment needs to be conducted independently, swiftly and in an in-depth fashion. In other words, officials seriously need to try to learn about facts and not rely on hasty and unfounded outcomes for the sake of concluding the investigation or justifying their decisions (see B. No: 2013/293, 17/7/2014, § 113; Assenov and others v. Bulgaria, App. No: 24760/94, 28/10/1998, § 103; Batı and others v. Turkey, App. No: 33097/96 - 57834/00, 3/6/2004, § 136). In this scope, officials should take all reasonable measures they can take in order to collect evidence in relation to the incident in question including the statements of eye witnesses and the criminalistic expert examinations in addition to other evidence (see B. No: 2013/293, 17/7/2014, § 113; Tanrıkulu v. Turkey [BD], App. No: 23763/94, 8/7/1999, § 104; Gül v. Turkey, App. No: 22676/93, 14/12/2000, § 89).

104.        In the incident that is the subject matter of the application, the applicant Ali Rıza Özer applied to a relevant healthcare institution regarding his injury that took place after the intervention of the police and complained before the Izmir Chief Public Prosecutor’s Office with this report alleging that the police intervened unfairly and excessively. In relation to the complaints, the Chief Public Prosecutor’s Office rendered a judgment of non-prosecution only by making a proportionality examination based on the file without doing any work on the identification of perpetrators, looking into whether the intervention made was inevitable or not and whether the applicant engaged in any action to require police intervention and without having a determination in the expert report that the applicants attacked the police, therefore, without finding out how the injury took place in addition to not taking the detailed statement of the applicant. Therefore, it was decided without conducting an effective investigation in terms of the mal-treatment claims of Ali Rıza Özer, the applicant, that there were no grounds for prosecution on the reasoning that convincing evidence and signs regarding the fact that the police exceeded their authority to use force could not be obtained.

105.          Regarding the allegations of Özcan Çetin and Veli İmrak, the other applicants, it was accepted that the intervention by the police did not directly target them but took place as undesired results of a necessary intervention and, in this scope, did not exceed the required minimum threshold within the scope of Article 17(3) of the Constitution (see §§ 91-95).  In this case, it should be evaluated whether the applicants’ complaints will remain within the scope Article 17(1) of the Constitution or Article 8 of the Convention in relation to the individual’s right to protect his corporeal and spiritual existence (B. No: 2012/969, 18/9/2013, § 24). In this scope, regarding being affected by the gas which was exposed to during the exercise of the right to assembly and did not exceed the minimum threshold, no subject that requires an evaluation within the framework of corporeal and spiritual integrity of the person has been encountered. Therefore, it is concluded that the claims of the applicants Özcan Çetin and Veli İmrak were not violated in terms of the procedural dimension of Article 17(1) and (3) of the Constitution. 

106.          In relation to the claims of the applicant Orhan Bayram, it is evaluated that the applicant's attack towards the police was clearly reflected in camera recordings and was determined through the expert report, furthermore, that the results of the intervention made against the applicant could be spotted through a doctor’s report, that the investigation held within this scope was sufficient for the allegations of the applicant Orhan Bayram.

107.        Due to the reasons explained, it is concluded that the prohibition of mal-treatment which is guaranteed in Article 17(3) of the Constitution was not violated in terms of the procedural dimension thereof since the investigation regarding the claims of the applicant Orhan Bayram was effective.

108.        It is concluded that Article 17(1) and (3) of the Constitution was not violated in terms of the procedural dimension thereof since the injuries of the applicants Özcan Çetin and Veli İmrak did not exceed the minimum threshold.

109.        On the other hand, it is concluded that the prohibition of mal-treatment which is guaranteed in Article 17(3) of the Constitution was violated in terms of the procedural dimension thereof due to the action that the applicant Ali Rıza Özer was subject to through the intervention of security forces. Judge Serdar ÖZGÜLDÜR has disagreed with this opinion.

b. The Allegation that the Right to Organise Meetings and Demonstration Marches was Violated

110.        Article 34 of the Constitution is as follows:

“Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission.

The right to hold meetings and demonstration marches shall be restricted only by law on the grounds of national security, public order, prevention of commission of crime, protection of public health and public morals or the rights and freedoms of others.

The formalities, conditions, and procedures to be applied in the exercise of the right to hold meetings and demonstration marches shall be prescribed by law.."

111.        Article 11 of Convention is as follows:

“1. Everyone has the right to freedom of peaceful assembly andto freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or publicsafety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.  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.”

112.          The applicants claimed that their rights to organise meetings and demonstration marches were violated by the prevention of their collective departure to Ankara from Izmir in order to attend the press statement to be made in Ankara to protest the bill which introduced new arrangements regarding the education applied in primary education and the use of disproportionate force by the police when they started to march to protest this (the first protest), on the other hand, by the disproportionate intervention by the police when they assembled the next day to protest the incidents which took place (the second protest).

113.          The Ministry made a reference to the case law of the ECtHR within the scope of Article 11 of the Convention and stated that such case law needed to be considered in the evaluation on whether the police’s intervention through the use of force was proportionate or not.

114.          In their statements with the order date of 9/4/2014 that they submitted against the Ministry opinion, the applicants stated that the protest held aimed at peacefully attracting the attention of the public to the bill, that, therefore, it was not possible to accept the use of excessive force.

i. General Principles

115.          The right to organise meetings and demonstration marches as regulated in Article 34 of the Constitution aims at protecting the opportunity for individuals to come together in order to defend their common ideas together and announce them to others. Therefore, this right is a special form of the freedom of expression that is regulated in Articles 25 and 26 of the Constitution. The importance of the freedom of expression in a democratic and pluralistic society also applies to the right to organise meetings and demonstration marches. The right to organise meetings and demonstration marches guarantees the emergence, safeguarding and dissemination of different thoughts which are essential for the development of pluralistic democracies. In this scope, despite its unique autonomous function and field of exercise, the right to organise meetings and demonstration marches should be evaluated within the scope of the freedom of expression and therefore the restriction of the freedom of expression in the subjects regarding political and public interests needs to be considered to be in a narrower scope and this quality needs to be considered in the exercise of the right to organise meetings and demonstration marches (see Öllinger v. Austria, App. No: 76900/01, 29/6/2006, § 38; Ezelin v. France, App. No: 11800/85, 26/4/1991, § 37). Therefore, this right, which is one of the fundamental rights in a democratic society, should not be interpreted narrowly (See G. v. Federal Republic of Germany, App. No: 13079/87, 6/3/1989, § 256; Rassemblement Jurassien Unité v. Switzerland, App. No: 8191/78, 10/10/1979, § 93).

116.          On the other hand, pluralism, tolerance and respecting others’ thoughts and beliefs are indispensable qualities of a democratic society. In pluralistic societies, the fact that the idea of the majority has superiority in all cases cannot be alleged and the guarantee for the protection of minority or opposing ideas and the expression thereof are indicators of respect to democratic principles. The protection and guarantee of opposing and minority ideas even in the situation that they are provocative or disturbing in comparison to the ideas of the majority are requirements of pluralism, broadmindedness, tolerance and a democratic society (see Handyside v. United Kingdom, App. No: 5493/72, 24/9/1976, § 49).

117.          The right to organise meetings and demonstration marches and the freedom of expression are among the most fundamental values of a democratic society. In the essence of democracy is the power to solve problems through an open discussion environment. Radical measures of preventive quality towards restricting the freedom of assembly and expression except for the cases when they encourage violence and removing the principles of democracy cause harm to democracy even in cases where officials evaluate the expressions and perspectives used in protests as surprising and unacceptable or where protests are illegal.   In a democratic society based on the rule of law, the political ideas which oppose the existing order and are defended to be realized through peaceful methods should be given the opportunity to express themselves through the freedom of assembly and other legal means (see Gün and others v. Turkey, App. No: 8029/07, 18/6/2013, § 70; Güneri and others v. Turkey, App. No: 42853/98, 43609/98 and 44291/98, 12/7/2005, § 76).

118.          Article 34 of the Constitution guarantees the right to organise meetings and demonstration marches in order to express ideas without guns and without attacks, in other words, peacefully. Exercised collectively, this right gives the persons who want to express their thoughts the opportunity to express their thoughts through methods that exclude violence. Demonstrations attended or organized by persons who intend to use violence are not within the scope of the notion of peaceful assembly (see Stankov and the United Macedonian Organization Ilinden v. Bulgaria, App. No: 29221/95 and 29225/95, 2/10/2001, § 77; the United Macedonian Organization Ilinden and Ivanov v. Bulgaria, App. No: 44079/98, 20/10/2005, § 99). In this scope, the aim of the right to assembly is to protect the rights of those individuals who do not take part in violence and express their ideas forward peacefully. Apart from that, the purpose of the meeting or demonstration march held has no importance. On the other hand, the arrangement does not remain limited to the protection of the right to peaceful assembly and at the same time it specifies the obligation to refrain from introducing undue restraints to this right indirectly.  The objective of protecting the individual against arbitrary intervention of public authorities during the exercise of the right to assembly guaranteed may also give rise to positive obligations in order to secure the effective enjoyment of this right (see Djavit An v. Turkey, App. No: 20652/92, 20/2/2003, § 57). Specifically, the state has the duty to take appropriate measures in order to ensure the peaceful and safe conduct of meetings and demonstration marches (see Oya Ataman v. Turkey, § 35).

119.          The peaceful nature of the right to assembly should be put forth by being evaluated as a whole in general. Except for this, the fact that some of those who attend a meeting or demonstration march resort to violence does not legitimise intervention to this right in terms of others (see Ezelin v. France, § 41). The fact that a meetings and demonstration march is illegal or is held contrary to law does not remove the peaceful nature of the meeting or march per se (see Oya Ataman v. Turkey, § 39). Therefore, it is apparent that all kinds of demonstrations held in public places may cause a certain disruption in the flow of daily life and lead to hostile reactions. The existence of these cases does not justify the violation of the right to assembly (see Achouguian v. Armenia, App. No. 33268/03, 7/7/2008, § 90; Berladir and others v. Russia, App. No. 34202/06, 10/7/2012, §§ 38-43; Disk and Kesk v. Turkey, App. No. 38676/08, , 27/11/2012, § 29).

120.          Article 34(2) of the Constitution accepts that the right to assembly may be restricted in some cases. In the same manner, the reasons for such restriction are set forth in Article 11(2) of the Convention. In this scope, the regulation of all kinds of restrictions to be introduced on the right to assembly through law as per Article 13 of the Constitution is a prerequisite. Even in situations set forth by law, intervention in this right needs to be within the framework of legitimate purposes. In Article 34, legitimate purposes are stated as “national security, public order, the prevention of offending, the protection of public health and public morality or of the rights and freedoms of others”. A similar regulation has been made in the Convention. Even the restraints to be introduced by law within the framework of legitimate purposes cannot be contrary to “the letter and spirit of the Constitution, the requirements of a democratic social order and of the secular Republic and the principle of proportionality”. Therefore, intervention on the right to assembly should be required for a democratic society. Last but not the least, the intervention must be proportionate in order to fulfill legitimate purposes.

121.          In Article 34(3) of the Constitution, it is regulated that the forms, conditions and procedures to be applied in exercising the right to organise meetings and demonstration marches will be specified by law. In Article 3 of the Law No. 2911, although it is accepted that the right to assembly can be exercised without permission, a procedure of notification to the civilian official forty eight hours in advance in order for the meeting to take place is prescribed in Article 10 of the same Law.

122.           The subjection of meetings and demonstration marches to a procedure of permission or notification does not generally infringe the essence of the right as long as the purpose of these procedures is to provide officials with an opportunity to take reasonable and appropriate measures in order to guarantee the orderly conduct of all kinds of meetings, marches or other demonstrations (see Bukta and others v. Hungary, App. No: 25691/04, 17/10/2007, § 35; Oya Ataman v. Turkey, § 39; Rassemblement Jurassien Unité v. Switzerland, § 119; Platform “Ärzte für das Leben” v. Austria, App. No: 10126/82, 21/6/1988, §§ 32-34). In this scope, the application of permission and notification procedures is only to ensure that the right to assembly is used effectively. In special cases when immediate reaction is justified and when the protest is made through peaceful methods, the breaking up of such kind of a protest solely on the ground that the obligation of notification is not fulfilled should be considered as an extreme restriction on the right to peaceful assembly (see Bukta and others v. Hungary, § 36; Oya Ataman, §§ 38-39, Balçık and others v. Turkey, App. No: 25/02, 26/2/2008,  § 49, Samüt Karabulut v. Turkey, App. No: 16999/01, 27/1/2009, §§ 34-35).

123.          On the other hand, the term “restriction” regarding meetings includes not only some preventive measures before the enjoyment of the right as it is the case in the freedom of expression but also the treatments displayed during or after the enjoyment of the right (see Ezelin v. France, § 39). Therefore, what is done during a peaceful demonstration or investigations and punishments towards the attendees after the demonstration may also be accepted as behaviours restricting the enjoyment of the right to assembly.

124.          The state’s displaying patience and tolerance towards the behaviours of crowds which have assembled for peaceful purposes that do not pose a threat in terms of public order and do not include violence as they enjoy their right to assembly is a requisite of pluralistic democracy.

ii. Application of General Principles

125.          The applicants wanted to depart from Izmir for Ankara collectively in order to attend the press statement to be made in Ankara to protest the bill which introduced new arrangements regarding the education in primary education. However, Ankara Governor’s Office evaluated that, during the protests to be made, an environment of conflict would be established between security forces and demonstrators for provocative purposes and that the protests would disrupt the normal flow of life and jeopardize general security and public order and security and prohibited all kinds of meetings and demonstration marches and similar protests in Ankara in order to prevent the disruption of public security and order, protect the rights and freedoms of others and prevent the committal of crimes. Following the said prohibition, the Ministry of Interior wrote an official letter to the governor’s offices in all provinces and instructed that the groups that would attend the meeting be prevented from exiting the province.   Following that, the officials at Izmir Security Directorate used the lack of documents in buses as an excuse for preventing the departure of the applicants for Ankara. Against the prevention, the applicants protested the situation by conducting a sit-in protest and a march at night.  During the march, the riot police established a barricade and at that moment a short clash took place between the demonstrators and the police and then the police intervened in the group with truncheons and pepper gas. After the union manager convinced the group, the group went to the union building and then broke up (the first protest).

126.          On the other hand, the applicants assembled once again the next day in order to protest both the said bill and the incidents which took place the night before. The police which were informed about the protest in advance took the necessary safety measures. The group which the applicants were involved in formed a march cortege and started to march towards the Governor’s Office building with placards in their hands in order to make a press statement and continued their march until the police barriers.   There, the police stated that the group would not be allowed to march to the Governor’s Office building and issued warnings that the march be stopped. After the group continued the march and strained the barriers, the demonstrators were intervened in with pressurized water, painted water, pepper gas and riot response vehicles (TOMA). Not being able to go beyond the police, the group then started a sit-in protest. As a result of the negotiations between the organizers of the demonstration and the security forces, the police barricade was retracted and the demonstrators were allowed to make a press statement (the second protest).

ii. 1. Concerning the Existence of the Intervention

127.          In relation to the first protest, it is apparent that the prevention of the applicants from departing for Ankara on the basis of the decision of Ankara Governor’s Office but via various legal justifications constitutes an intervention in the right to assembly. On the other hand, the police dispersing the sit-in protest and demonstration march of the applicants after they closed the road to traffic in order to protest the situation when they were unexpectedly prevented is also an intervention in the right to peaceful assembly. In relation to the second protest, the prevention of the group which the applicants were involved in from making a press statement in front of the Governor’s Office building should also be considered as an intervention in the right to assembly. 

ii. 2. Concerning the Intervention on Justified Ground

128.          As per Article 34(2) of the Constitution, the right to assembly cannot be intervened in “as long as not prescribed by law” and except for the legitimate purposes specified in the text of the Article. At the same time, whether or not a restriction towards the right to assembly is in line with the conditions of bearing no prejudice to the essence, being indicated under the relevant Article of the Constitution, being prescribed by law, not being contrary to the letter and spirit of the Constitution, the requirements of a democratic social order and of the secular Republic and the principle of proportionality as prescribed under Article 13 of the Constitution needs to be determined.

ii. 2. a. Lawfulness of the Intervention

129.          In both protests that are the subject matter of application, the legal basis of the intervention is Article 16 of the Law No. 2559 and Articles 7, 22 and 24 of the Law No. 2911. In Article 16 of the Law No. 2559, the situations in which the police can use force and guns and to what extent they can do this are specified.  In this context, in the event that the police face resistance while on duty, they shall be entitled to use force proportionately and in order to break this resistance. This authority includes not only the police’s use of bodily power against persons who resist but also the use of some tools such as handcuffs, truncheons, pressurized water, tear gases or powders, physical barriers, police dogs and horses within the scope of physical force. On the other hand, the points to be observed during interventions to riots are regulated in detail in the circular and instructions published by the Turkish National Police (see §§ 46-47). Therefore, the necessary legal arrangements are made on the points to be followed in the restriction of the right to assembly and the procedure of intervention within the scope of Article 34(2) of the Constitution.  Due to this reason, intervention in the right to assembly in terms of the first protest and the second protest has the “lawfulness” element.

ii. 2. b. Legitimate Purpose

130.          In terms of both protests, the applicants alleged that the purpose of the intervention made by the police was to prevent the enjoyment of the right to assembly and demonstration marches.

131.          In order for an intervention made in the right to assembly and demonstration marches to be legitimate, it needs to be towards the purposes of “national security, public order, the prevention of offending, the protection of public health and public morality or of the rights and freedoms of others” as stipulated in Article 34(2) of the Constitution.

132.          When the announcements in the camera recording and the minutes issued by the police are examined towards what purpose the interventions in both protests were made, it is understood that the purpose was towards preventing the disruption of public order. Due to this reason, it should be accepted that the intervention that the police made as per Article 34 of the Constitution in terms of both protests had a legitimate aim.

ii. 2. c. Necessity and Proportionality in a Democratic Society

133.          In terms of the first protest, what needs to be stated in priority regarding whether intervening the applicants' exercise of their right to assembly is "necessary in a democratic society" or not is that the organized structures', such as non-governmental organizations and trade unions, and persons' displaying their reaction through peaceful means in relation to any subject which is deliberated on in the legislative assembly is a characteristic aspect of pluralistic democracies (see §§ 116-118). In this scope, allowing minority or opposing thoughts to express themselves during differences of opinion on political subject matters is a positive obligation of states (see § 119). The state needs to not only protect the freedom to organize meetings and attend meetings that are held for peaceful purposes but also not to introduce any unreasonable, indirect restrictions preventing the enjoyment of this right.

134.          In the first protest, the effort of the applicants to collectively express their concerns or opposing ideas towards a bill that would be deliberated on at the GNAT should be met with respect in a democratic society. Therefore, the state should be expected to adopt a more patient and tolerant attitude in such cases. The barring of persons from attending the protests to be held in Ankara through various methods cannot be accepted as reasonable in a pluralistic democratic society.

135.          On the other hand, Ankara Governor's Office prohibited all kinds of meetings and demonstration marches and similar protests on a specific date in Ankara due to security reasons (see § 10). The evaluation of whether there are security risks in the organization of protest demonstrations rests with the state officials specified in the Law No. 2911. Nevertheless, the organization of a meeting or demonstration march against a bill on the date when deliberations will be held at the Assembly should be protected in a democratic society.  Specifically considering that the protests to be held after the arrangement is enacted may not bring forth the expected impact at National Assembly level, the making of a total decision of prohibition instead of showing the groups to hold a demonstration in a suitable place by evaluating security risks and the indirect implementation of this decision due to other legal justifications should not be excused in a democratic society.   

136.          Although the applicants’ stopping the traffic by holding a sit-in protest at night in order to protest their barring from departing for Ankara and their not making a notification in terms of the demonstration march they held in places which are considered to be prohibited within the scope of the Law No. 2911 turn the protest into an illegal one, the intervention in the protest which was held for peaceful purposes in the face of suddenly developing incidents should not be considered as proportionate due to this reason (see § 120). Specifically the group’s opening some part of the road after a traffic jam occurred during the sit-in protest, then their not acting rampantly while starting the march, their not adopting an aggressive attitude during the police intervention are indicators of the fact that the protest was held for peaceful purposes. In such a case, the police are expected to be more patient and tolerant in terms of breaking up the group in a protest which is held for peaceful purposes even if it is illegal (see § 34).

137.          The fact that Izmir Chief Public Prosecutor’s Office did not file any criminal case in relation to the first protest (see § 34) also indicates that the right to assembly and demonstration march was exercised in a peaceful manner. Therefore, in terms of the first protest, the barring of applicants from going to Ankara in order to make a mass press statement and then the breaking up of those who protested this situation cannot be evaluated as a rightful intervention in terms of the requirements of a democratic public order.

138.          In the second protest, the applicants and trade union members gathered in front of the former Sümerbank building at Konak Square, where the police had taken the necessary safety measures, in order to protest both the said bill and the incidents which took place the night before. The police intervened with the demonstrators at two locations in order to prevent passage to the square where they evaluated that the locations constituted a security risk during the assembly and protest demonstrations or where the rights of others would be intervened in.

139.          The group formed a march cortege and started to march towards the Governor’s Office building with placards in their hands in order to make a press statement. When the group arrived at the Metropolitan Municipality building, the police issued warnings that the group would not be allowed to march to the Governor’s Office building and the march should be stopped.  A small group which included Orhan Bayram, one of the applicants, ignored the warnings, pushed the staff on duty, started to bring down the barriers with the poles in their hands and the police intervened with the demonstrators with pressurized water, painted water, pepper gas and TOMA.  At that moment, not all of the demonstrators but just the group that attempted to go beyond the barriers was intervened with. Then, the group that was not able to go beyond the police started a sit-in protest. As a result of the negotiations between the union representatives who organized the demonstration and the police, the barricade was retracted, the demonstrators were allowed to make a press statement in front of Izmir Metropolitan Municipality and those who attended the demonstration broke up by themselves following the end of the statement. Therefore, those who attended the demonstration except for those who attempted to go beyond the barriers and those who constituted the majority exercised their right to assembly in a peaceful manner.

140.          In terms of the second protest, whether the intervention was necessary within the democratic public order and if necessary, its proportionality need to be evaluated.   In the second protest, the applicants and the other demonstrators came together in order to protest the bill and the barring of their departure to Ankara. Before this protest, no notification was made within the scope of the Law No. 2911. However, cognizant of the demonstration to be organized, the police took the necessary safety measures in order to prevent passage to roads and squares where it was determined that it would set a risk in terms of public order to hold a demonstration march.

141.          In the first intervention, the police prevented the passage of the group that wanted to go to the Governor’s Office building by way of spraying pepper gas that is called model-5 on the demonstrators (see § 21). Furthermore, no intervention towards completely breaking up the group was made and the group was shown an alternative route and it was ensured that it continued with its protest. In the second intervention, intervention was made with truncheons and then TOMA respectively in order to prevent the passage of the group which was more crowded in number and was determined to go beyond the barriers. It is determined from the camera recording which was watched that in this intervention, it was not the whole group but only the group which tried to go beyond the safety measures that was intervened with.  

142.          In the camera recording, no image regarding the fact that the police acted in order to break up the whole group in general was spotted during the intervention against the demonstrators. Furthermore, it is evaluated that the police did not attempt to prevent the protest demonstration as a whole by presenting some legal obligations such as notification as a justification during the gathering of the group and their starting to march as a march cortege. During the protest, the police closed some roads where it took safety measures, prevented passage from these roads and showed alternative routes to the demonstrators. After the intervention of the group that tried to go beyond the police barriers in order to go to the Governor’s Office building was suppressed, the demonstrators were given the opportunity to make a press statement. The demonstrators made the press statement in front of Izmir Metropolitan Municipality building, which is very close to the Governor’s Office building, could be accepted to be at the center of the city and is not evaluated to nullify the purpose of assembly. Therefore, it cannot be said that the group which included the applicants was not able to exercise their right to organize meetings and demonstration marches as regulated in Article 34 of the Constitution or that they were restricted in a way to be ineffective through the intervention made.

143.          Regarding those who attended the demonstration, a criminal case was filed against some people including the applicants Orhan Bayram and Ali Rıza Özer in order for them to be penalized for not breaking up despite warning within the scope of Article 32(1) of the Law No. 2911 (see § 34). The court held that there were no grounds to adjudge penalties about all defendants. Therefore, it cannot be said that the right to assembly was restricted this way since no penalties were adjudged regarding the applicants in the criminal case which was filed due to their attendance in the meeting that they organized in a peaceful manner and way (see § 124). Thus, the intervention made by the police was an intervention that could be excused in terms of the requirements of the democratic society.

144.          On the other hand, the proportionality of the intervention the police made against the reactions of the demonstrators towards safety measures should be evaluated. It is understood from the camera recording that a group among the demonstrators attempted to bring down the barriers and open the road. As a result of this, the riot police located behind the barriers intervened in order to prevent those who attempted to bring down the barriers. It is observed that the police made the intervention for defensive purposes. Then the police withdrew and intervened with the group which walked towards themselves with pressurized water from TOMA. At that moment, the large part of the demonstrators shouted slogans and continued their protests in a peaceful manner. Intervention was made with gas and painted water against the demonstrators who did not break up with pressurized water. In the camera recording, no image regarding the fact that the police intervened in other demonstrators who sustained their protests peacefully during the intervention or that they acted in order to break up the whole group. Moreover, it is observed that the harshness of the intervention was gradually increased and the police made efforts not to allow the demonstrators to pass from the square where safety measures were taken in general. Then an agreement was reached with the demonstrators and they were allowed to make a press statement after the barriers had been retracted.

145.          Although the intervention of the police is accepted to be proportionate in general, when the peculiarities of the present incident are considered, the right to assembly, which is exercised collectively but is an individual right, and the proportionality of the police intervention within the framework of the attitudes of the applicants in the protest should be evaluated separately.

146.          The intervention made by the police after the applicant Orhan Bayram had brought down the barriers and attempted to go beyond the safety measures should be accepted as proportionate. Indeed, the applicant attacked the police with the pole in his hand and the police tried to parry the attack of the applicant with pressurized water. The right to organize meetings and demonstration marches guarantees protests that are done with peaceful purposes and ways. This right does not protect activities that involve violence and require penal sanctions, such as assault. Therefore, it cannot be said that the intervention made against the violent behaviour of the applicant Orhan Bayram was disproportionate in a way to violate the right to assembly, also considering the doctor’s report.

147.           On the other hand, despite the fact that no signs were determined within the scope of camera recording and expert report that the applicants Ali Rıza Özer, Veli İmrak, Tunay Özaydın and Deniz Doğan attempted to go beyond the police barricade and engaged in any action requiring intervention, it is evaluated that the intervention was not proportionate when the facts that there were injuries in their bodies and the acceptance in the decisions of the Public prosecutor’s office that these injuries occurred as a result of police intervention were considered. Therefore, the rights of these applicants to attend meetings and demonstration marches in a peaceful manner and with peaceful purposes were violated.

148.          Another matter which needs to be evaluated in terms of the allegation of the applicant Özcan Çetin is the issue of the use of “pepper gas” by the police during intervention in riots. The gas which is used by the member states of the European Council in order to control and disperse riots is not included in the list of poisonous gases (see § 48). Therefore, intervention in riots with pepper gas should not be evaluated as the violation of the right to assembly per se. On the other hand, it is important to determine in legislation under what circumstances pepper gas, which is proved to cause some health issues, needs to be used.

149.          Within the scope of the Circular No. 19 of 15/2/2008 by the Turkish National Police, the instructions on the use of tear gas guns and ammunition, the physiological effects of pepper gas are stated and the principles of first aid to be applied in relation to this are revealed. On the other hand, under the heading of the tactics for the use of tear gases, it is set forth that the necessary medical measures be taken and warnings be made in a way to be audible by the crowd that gas will be used and they should disperse. Furthermore, it is stated that the dose of lachrymatory substances will also be gradually increased.

150.          It is important that the persons who can be affected more than expected due to age, pregnancy or chronic disorders are warned before the use of gas.  Considering that loss of lives can be the case in interventions made with pepper gas in some riots taking place in our country, the implementation of the instructions of the Turkish National Police is especially important.

151.          In the present case, it could not be determined from the expert and camera recordings that the demonstrators were notified in advance that gas water would be used or pepper gas would be used. Warnings should be issued in advance in the use of gas water and pepper gas which could have grave consequences in a way to extend to death due to the special circumstances of persons. Although the applicant did not suffer from serious health problems due to the pepper gas which he was exposed to and could be accepted as proportionate, the use of gas without issuing a warning violated the right to assembly of the applicant who attended the meeting with peaceful purposes and in a peaceful way.

152.          Due to the reasons explained, in terms of the first protest, it is concluded that the right to organize meetings and demonstration marches that was guaranteed in Article 34 of the Constitution was violated in respect of all applicants due to their being barred through a prohibitory order from attending the press statement to be made in Ankara and the demonstration march which they organized against this attitude. Judge Serdar ÖZGÜLDÜR has disagreed with this opinion.

153.          On the other hand, in terms of the second protest, it is concluded that the right of the applicant Orhan Bayram to organize meetings and demonstration marches which is guaranteed in Article 34 of the Constitution was not violated.

154.          In respect of the other applicants, it is concluded that the right to organize meetings and demonstration marches which is guaranteed in Article 34 of the Constitution was violated. Judge Serdar ÖZGÜLDÜR has disagreed with this opinion.

3.      Article 50 of the Law No. 6216

155.          The applicants did not file a request for compensation.

156.          Article 50(2) of the Law on the Establishment and Trial Procedures of the Constitutional Court No. 6216 with the side heading of ''Judgments'' is as follows:

"If the determined violation arises out of a court judgment, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed, In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favor of the applicant or the remedy of filing a case before the general courts may be shown. The court, which is responsible for holding the retrial, shall deliver a judgment based on the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its judgment of violation."

157.          It needs to be decided that the trial expenses of TRY 1,698.35 in total, composed of the application fee of TRY 198.35 and the counsel's fee of TRY 1,500.00, which were made by the applicants, be jointly paid to the applicants.

158.          In relation to the allegations that are the subject matter of the application, considering that the "prohibition of mal-treatment" regulated in Article 17(3) of the Constitution was violated in material and procedural terms in respect of the applicant Ali Rıza Özer, it needs to be decided that a copy of the judgment be sent to the Chief Public Prosecutor's Office in order to prevent the continuance of the violation in a prosecution file where it is apparent that a constitutional right is violated.

V. JUDGMENT

In the light of the reasons explained, it is held;

A.        

                   1. UNANIMOUSLY that the complaints that were filed by the applicants Ali Rıza Özer, Özcan Çetin, Veli İmrak and Orhan Bayram in relation to the violation of Article 17(3) of the Constitution are ADMISSIBLE,

                   2. by the dissenting vote of judge Serdar ÖZGÜLDÜR and BY MAJORITY OF VOTES that the complaints which were filed by the applicants Ali Rıza Özer, Özcan Çetin, Veli İmrak, Orhan Bayram, Tunay Özaydın and Deniz Doğan in relation to the violation of Article 34 of the Constitution are ADMISSIBLE,

B.      

                   1. by the dissenting vote of judge Serdar ÖZGÜLDÜR and BY MAJORITY OF VOTES that the prohibition of mal-treatment which is guaranteed in Article 17(3) of the Constitution was VIOLATED in material and procedural terms in respect of the applicant Ali Rıza Özer,

                   2. UNANIMOUSLY that the prohibition of mal-treatment which is guaranteed in Article 17(3) of the Constitution was NOT VIOLATED in material and procedural terms in respect of the applicants Orhan Bayram, Veli İmrak and Özcan Çetin,

                   3. by the dissenting vote of judge Serdar ÖZGÜLDÜR and BY MAJORITY OF VOTES that the right to organize meetings and demonstration marches which is guaranteed in Article 34 of the Constitution was VIOLATED in respect of all applicants in terms of the first protest that the applicants attended,

                   4. In terms of the second protest that the applicants attended;

a. UNANIMOUSLY that the right to organize meetings and demonstration marches which is guaranteed in Article 34 of the Constitution was NOT VIOLATED in respect of Orhan Bayram,

b.  by the dissenting vote of judge Serdar ÖZGÜLDÜR and BY MAJORITY OF VOTES that the right to organize meetings and demonstration marches which is guaranteed in Article 34 of the Constitution was VIOLATED in respect of Ali Rıza Özer, Özcan Çetin, Veli İmrak, Tunay Özaydın and Deniz Doğan,

C.    UNANIMOUSLY that the trial expenses of TRY1,698.35 in total composed of the fee of TRY198.35 and the counsel's fee of TRY1,500.00 which were made by the applicants be JOINTLY PAID TO THE APPLICANTS,

D.    UNANIMOUSLY that the payments be made within four months as of the date of application by the applicants to the Ministry of Finance following the notification of the judgment; that in the event that a delay occurs as regards the payment, the legal interest be charged for the period that elapses from the date, on which this period comes to an end, to the date of payment,

E.     UNANIMOUSLY that a copy of the judgment be sent to İzmir Chief Public Prosecutor's Office, the Ministry of Justice and the Ministry of Interior as per Article 50(3) of the Law No. 6216

on 6/1/2015.

DISSENTING OPINION

1.  In the application form that was recorded on 31.5.2015, it is seen that a general explanation of the incident was present and a claim of violation towards the right to life (Constitution Art. 17) was substantially made, that a claim of violation towards the right to organize meetings and demonstration marches (Constitution Art. 34) was not made.   Although it is understood from the "Additional declaration petition" which was recorded on 3.7.2013 that a request was filed on this matter, since there is no possibility in lieu of the clear provision of Article 47/3 of the Law No. 6216 to consummate a claim of the violation of a right, which was not declared in the application form, with an additional declaration by qualifying it as "deficit in application documents" within the scope of Article 47/6, it is not possible to examine this new claim of violation. In this sense, a decision of inadmissibility needs to be made regarding the claims in relation to Article 34 of the Constitution.

 In terms of the essence of the claim of violation on this matter; the conclusion reached was that Articles 34/2 of the Constitution and Article 11/2 of the ECHR regulated the matter of introducing restrictions regarding the exercise of this right, that, in the substance of the case, the intervention made to the right to assembly and demonstration march carried the element of "lawfulness" as adopted in the majority judgment, that there is no doubt the intervention was made "for a legitimate purpose", that, in the evaluation made in terms of the element of "necessity and proportionality in a democratic society", there is no reason for violation for this element, either and the dismissal of the application is necessary as concluded from the examination of the evidence present in the file such as expert reports and image CDs together. 

2. In the evaluation which was made in terms of Article 17 of the Constitution, it is concluded that it needs to be decided that there is no violation due to the following reasons:

In Article 16 of the Law on the Duties and Responsibilities of the Police No. 2559 of 4.7.1934, the authority of the police to use force is regulated and it is provided that this authority can be used in the form of bodily and physical force (including the cases of using pressurized water and tear gas), that, before using force, the persons concerned be given a warning that force will be used directly if they continue to resist, that force may also be used without issuing a warning by considering the nature and degree of resistance.  In the examination of the expert reports present in the file and of the Decision of the Public Prosecutor's Office that There Were No Grounds for Prosecution, the conclusion reached was that the intervention of security forces towards demonstrators remained within the scope of the legal authority to use force, that there are no substantial findings and evidence to support the abstract claim that the right to life was violated by means of exceeding this authority in a disproportionate manner, that there is no substantial indication except for a declaration regarding the fact that the disorder and battery marks substantiated in the existing health reports was brought about by the security forces through the disproportionate exercise of the authority to use force, that there is no significant data (substantiated claim, image recording and so on) in relation to directly attributing them to security forces although it is definite that they occurred during a state of turmoil and in the crowd, that, in the preparatory investigation conducted upon the complaint filed on this matter, there is no deficit from a procedural dimension, that, therefore, when the incident is considered as a whole, it would be based on a hypothetical acceptance to arrive at a conclusion that Article 17 of the Constitution was violated in material and procedural dimensions.   

Due to the reasons explained; since I evaluate that a decision that "there is no violation" in terms of the two claims of allegation should be rendered; I was not able to agree with the decision of the majority to the opposite.

Justice

Serdar ÖZGÜLDÜR