REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
PLENARY
JUDGMENT
DİLAN ÖGÜZ CANAN
(Application no. 2014/20411)
30 November 2017
On 30 November 2017, the Plenary of the Constitutional Court found a violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution in the individual application lodged by Dilan Ögüz Canan (no. 2014/20411).
THE FACTS
22. The Constitutional Court, at its session of 30 November 2017, examined the application and decided as follows:
Alleged Violation of the Right to Hold Meetings and Demonstration Marches
1. The Applicant’s Allegations
23. The applicant complained of alleged violations of the right to hold meetings and demonstration marches, the freedom of expression and the right to a fair trial due to her placement into custody and, over the course of lengthy proceedings conducted because of her participation in a demonstration, the imposition of two convictions and, finally, imposition of a three-year probation imposed on her even though a conviction was not imposed at the end.
24. Article 34 of the Constitution titled “Right to hold meetings and demonstration marches” reads 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.”
25. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). The Court considered that the applicant’s complaint should be examined from the standpoint of the right to hold meetings and demonstration marches (i.e. right to assembly).
26. The alleged violation of the right to hold meetings and demonstration marches was declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.
i. Existence of Interference
27. It is clear that the dispersal of the group of protesters by taking the applicant and the other protesters into custody constituted an interference with the right to assembly. Moreover, regard should also be had to the “restrictive” effect of not only the interferences during the exercise of the right to assembly but also those after its exercise. Even though a punishment was not imposed on the applicant as a result of the criminal proceedings against her, the imposition of the three-year probation measure on the applicant must be regarded as an interference with the right to assembly (see, for the interferences with the right to assembly after the exercise of the right, Eğitim ve Bilim Emekçileri Sendikası and Others, § 47; see also, for the interferences with the right to assembly during the exercise of the right, Osman Erbil, no. 2013/2394, 25 March 2015, § 53 and Gülşah Öztürk and Others, no. 2013/3936, 17 February 2016, § 72).
28. The above-mentioned interference would constitute a violation of Article 34 of the Constitution unless it satisfied the requirements laid down in Article 13 of the Constitution. Article 13 of the Constitution provides as follows:
“Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution... These restrictions shall not be contrary to ... the requirements of the democratic order of the society ... and the principle of proportionality.”
29. It must be examined whether the interference was prescribed by law as required by Article 13 of the Constitution, relied on the legitimate aims set out in the relevant article of the Constitution, and in compliance with the requirements of the democratic order of the society and the principle of proportionality.
30. The Court concluded that Article 28 of Law no. 2911 and Provisional Article 1 of Law no. 6352 constituted the legal basis of the restriction.
31. The Court concluded that the police intervention on the group also including the applicant and the placement of the applicant under probation by suspending the prosecution against her pursued a legitimate aim as they were part of a series of measures aimed at “maintaining the public order”.
(1) General Principles
32. The Court has previously explained, on many occasions, what should be understood from the expression “requirements of the democratic order of the society”. Accordingly, a measure that restricts the fundamental rights and freedoms must correspond to a social need and be used as a last resort (see, in the context of the right to organise unions, Eğitim ve Bilim Emekçileri Sendikası and Others, § 73; Tayfun Cengiz, § 56; Adalet Mehtap Buluryer, no. 2013/5447, 16 October 2014, §§ 103-105; see, in the context of the right to strike, Kristal-İş Sendikası [Plenary], no. 2014/12166, 2 July 2015, § 70; see also, in the context of the freedom of expression, Bekir Coşkun [Plenary], no. 2014/12151, 4 June 2015, § 51; Mehmet Ali Aydın [Plenary], no. 2013/9343, 4 June 2015, § 68; and Tansel Çölaşan, no. 2014/6128, 7 July 2015, § 51). Inferior courts enjoy a certain margin of appreciation in the determination of whether or not such a social need is present. Nevertheless, this margin of appreciation is subject to the Court’s review.
33. On the other hand, it should also be examined whether any restriction imposed on fundamental rights and freedoms is a proportional limitation that allows for the minimum interference with fundamental rights, along with being necessary for the democratic order of the society (see the Court’s judgment no. E.2007/4, K.2007/81, 18 October 2007; see, in the context of the right to organise unions, Eğitim ve Bilim Emekçileri Sendikası and Others, § 73; Tayfun Cengiz, §§ 53-55; see also, for explanations as to proportionality in the context of the freedom of expression, Kamuran Reşit Bekir [Plenary], no. 2013/3614, 8 April 2015, § 63; Bekir Coşkun, §§ 53 and 54; Tansel Çölaşan, §§ 54 and 55; and Mehmet Ali Aydın, §§ 70-72). The Court must therefore determine whether a fair balance was struck between the measures deemed necessary for the achievement of the legitimate aims set out in Article 34 § 2 of the Constitution and the right to assembly.
34. The right to hold meetings and demonstration marches aims to safeguard the individuals’ opportunity of gathering in order to defend and proclaim their common ideas together. Therefore, this right is a specific aspect of the freedom of expression. The importance of the freedom of expression in a democratic and pluralistic society is also true for the right to hold meetings and demonstration marches (see Ali Rıza Özer and Others [Plenary], no. 2013/3924, 6 January 2015, § 115; Osman Erbil, §§ 31 and 45; Eğitim ve Bilim Emekçileri Sendikası and Others, § 72; and Gülşah Öztürk and Others, § 66). Under these circumstances, the present application must be examined in the light of Article 26 of the Constitution and pursuant to Article 34 of the Constitution.
35. The Court has always emphasised that the freedom of expression enshrined in Article 26 of the Constitution constitutes one of the essential foundations of a democratic society and basic conditions for its progress and for each individual’s self-fulfilment. It is only possible to reach social pluralism in a free environment of debate where any idea can be freely expressed. Thus, the achievement of social and political pluralism depends on the peaceful and free expression of all kinds of ideas (see, with regard to the importance of the freedom of expression on the Internet, Yaman Akdeniz and Others, no. 2014/3986, 2 April 2014, §§ 25 and 26; see, with regard to the importance of the freedom of artistic expression, Fatih Taş [Plenary], no. 2013/1461, 12 November 2014, §§ 66 and 104; see also, with regard to the thoughts of a politician expressed in a press statement, Mehmet Ali Aydın, §§ 74 and 84).
36. Article 34 of the Constitution guarantees the right to hold meetings and demonstration marches to enable the expression of ideas in a peaceful manner, i.e. without arms or attacks. The right which is exercised in a collective manner and which gives individuals an opportunity to express their thoughts in non-violent methods guarantees the emergence, safeguarding and dissemination of different thoughts that are essential for the development of pluralistic democracies. Thus, despite its unique autonomous function and field of exercise, the right to assembly should be evaluated within the scope of the freedom of expression. The interferences with this right should be interpreted much more strictly in cases where political matters and matters of public interest are in question (see Eğitim ve Bilim Emekçileri Sendikası and Others, § 79; Osman Erbil, § 45; see also, for assessments where the right to assembly and the freedom of expression are considered in conjunction with each other, Ali Rıza Özer and Others, §§ 115-117).
37. The right to assembly is one of the core values of a democratic society. In a democratic society, the political ideas which oppose the existing order and are defended to be realised through peaceful methods should be given the opportunity to be expressed through assembly and other legal means. Where the organisers or participants of a demonstration have violent intentions, that demonstration falls outside the scope of the notion of peaceful assembly. Within this scope, the purpose of the right to assembly is to protect the rights of individuals who are not involved in violence and who express their opinions in a peaceful manner. Apart from that, the purpose with which the meeting or demonstration march is held has no importance (see Eğitim ve Bilim Emekçileri Sendikası and Others, § 80; Ali Rıza Özer and Others, §§ 117 and 118; Osman Erbil, § 47; and Gülşah Öztürk and Others, §§ 67 and 68).
38. Radical measures of a preventive nature oriented at removing the freedom of assembly, except for the cases of incitement to violence and attempt to abolishing the principles of democracy, cause harm to democracy. Therefore, it is a requirement of a pluralistic democracy for the State to display patience and tolerance towards the behaviours of the persons who have assembled for peaceful purposes, which do not pose a threat to the public order or involve violence, in the exercise of their right to assembly.
39. The Court previously held that the right to assembly may be bound with a procedure of prior notification. Making meetings and demonstration marches subject to a procedure of notification does not generally harm the essence of the right as long as the purpose of this procedure is to provide officials with an opportunity to take reasonable and appropriate measures in order to guarantee the orderly conduct of meetings, marches or other demonstrations. The aim of the application of the notification procedure, except for special cases where an immediate reaction is justified, is to ensure that the right to assembly is exercised effectively (see Eğitim ve Bilim Emekçileri Sendikası and Others, § 81; Osman Erbil, § 52; and Ali Rıza Özer and Others, § 122; see also, with regard to situations where the participants were justified to react immediately, Osman Erbil, §§ 65 and 67 and Ali Rıza Özer and Others, § 119).
40. According to the conclusion drawn from the above, it must be acknowledged that the authorities can take measures that will eliminate any real threats arising out of the exercise of the right to assembly that may endanger the public order. The measures to be taken may vary depending on the characteristics and necessities of the situation. Therefore, it must be accepted that the State enjoys a certain margin of appreciation in its regulations and practices in this regard. Organising meetings that are not in compliance with those measures or peaceful, participating in such meetings, or committing offences in such meetings may be subject to punishment (see Eğitim ve Bilim Emekçileri Sendikası and Others, § 81; see also, for an application where it was held that an interference with the right to assembly due to disruption of public order was found necessary in a democratic society, Gülşah Öztürk and Others, §§ 76-86).
41. On the other hand, the mere fact that a meeting or demonstration march is held without complete compatibility with the procedures set out in laws does not, by itself, remove the peacefulness of the meeting or march. Similarly, it should be kept in mind that any kind of demonstration march held in a public space might cause some level of disorderliness in the flow of daily life and give rise to hostile reactions. The presence of such circumstances does not justify a violation of the right to assembly (see Ali Rıza Özer and Others, § 119; Gülşah Öztürk and Others, § 69).
42. Any other measures taken or punishments envisaged cannot be allowed to indirectly become unlawful restrictions on the right to hold peaceful assemblies. Individuals must also be protected from arbitrary interferences of the State forces during the enjoyment of the guaranteed right to assembly (see Eğitim ve Bilim Emekçileri Sendikası and Others § 82; Gülşah Öztürk and Others, § 76).
43. Article 12 § 2 of the Constitution (“The fundamental rights and freedoms also comprise the duties and responsibilities of the individual to the society, his/her family, and other individuals.”) refers to the duties and responsibilities of persons in the exercise of their fundamental rights and freedoms. Article 12 of the Constitution emphasises the intrinsic connection that links rights and freedoms with duties and responsibilities. Duties and responsibilities become particularly important in complaints, such as the present one, concerning a restriction imposed on a fundamental right or freedom of persons who allegedly failed to fulfil their duties or responsibilities. In examining the complaints before it, the Court takes the duties and responsibilities of individuals into consideration. It must be noted that individuals’ ability to fully enjoy their rights and freedoms is dependent upon their respect for the duties and responsibilities that are inherent in those rights and freedoms.
44. The Court will now examine the impugned interference as a whole to determine whether the interference was proportionate and whether it was proven based on reasonable grounds, with a view to avoiding arbitrary practices and unlawful restrictions, that such an interference in the form of punishing individuals who had participated into a peaceful meeting was necessary in a democratic society.
45. The matter before the Court is the question whether it was proportionate and necessary in a democratic society to perform the interference at issue that was caused by preventing a demonstration organised to protest against a group comprised of the Prime Minister, politicians, high-level bureaucrats and academic instructors; ordering the arrest and custody of the applicant who had participated in that demonstration; and imposing three years’ probation on the applicant.
46. It must be acknowledged that there is a risk of Article 28 of Law no. 2911 being applied in indirect interferences with peaceful demonstrations. The said rule stipulates the imposition of punishment on those who organise, participate in, or lead the meetings or demonstration marches against the Law. Article 23 titled “Unlawful meetings and demonstration marches” of Law no. 2911 includes a long list of the conditions under which a meeting or demonstration march shall be against the law, i.e. “unlawful”. On the basis of the judgment of the first instance court, the impugned demonstration was against the Law because it was held without prior notification as per the procedures set out in the Law and the demonstrators refused to disperse willingly despite the police’s announcement that the assembly had to be dispersed.
47. It is not the Court’s concern whether the conditions required for the application of the provision of law regarding this offence were present in the instant case or what should be the elements of the offence. On the other hand, the Court is indeed concerned by an interference in which a criminal conviction sentencing those who participated in a meeting or demonstration march, as in the present case, constitutes an interference with a constitutional right.
48. In cases where a person was punished for merely participating in a meeting or demonstration march and it has been acknowledged by the Court that there was an interference with the fundamental rights and freedoms, the Court will then firstly examine whether the meeting or demonstration march caused a public disorder, whether a risk of disorder arose or whether there was any reality in the public authorities’ assessments to that end (see Eğitim ve Bilim Emekçileri Sendikası and Others, § 88).
49. At the outset, it must be recalled that the mere existence of a meeting or demonstration march that is not organised in due compliance with the procedure cannot be deemed as a sufficient justification by the Court for interfering with fundamental rights and freedoms. For this reason, the first instance court’s reasoning that the impugned demonstration had been held without duly making a prior notification cannot be per se accepted as a relevant and sufficient reason.
50. The first instance court secondly relied on its finding that the demonstrators’ refusal to disperse in spite of the police’s instruction was against the law. Given the fact that the Prime Minister and certain other politicians and State officials were attending an opening ceremony near the place where the demonstration was held in the present case, it is understandable that the security measures were stricter than ordinary. In addition, the day of the incident is the anniversary of the coup d’état of September 12, and typically numerous meetings and demonstrations are held across the country on that day. Certain extremist groups wishing to steer their anger towards official bodies due to what was done during the military regime may sometimes cause violence and remove the peaceful nature of meetings and demonstrations. Therefore, it would be acceptable in such times to take broader security measures, observe them in a stricter manner, and act more diligently in terms of ensuring the demonstrators’ compliance with the rules.
51. Nonetheless, to reiterate, it must be shown in applications such as the present one in any event that there was public disorder or the risk of disorder to justify an interference with the right to assembly. Therefore, any act or procedure carried out by public authorities which constitute an interference with fundamental rights pose a risk of violating fundamental rights and freedoms if it cannot be shown with relevant and sufficient reasons that there was public disorder or such risk when the impugned incidents were taking place (see Eğitim ve Bilim Emekçileri Sendikası and Others, § 89).
52. An interference with a meeting such as the one subject to the present application may be regarded as necessary in a democratic society to the extent that it corresponds to a social need. In the present case, neither the bill of indictment nor the decisions and judgments of inferior courts contained an assessment as to whether the impugned protest had disrupted certain activities, caused public disorder, or debilitated the security measures taken.
53. It must be demonstrated by the competent authorities (e.g. in police reports, indictments, or reasoned decisions and judgments of the inferior courts) that the interference with a meeting or demonstration performed for certain special reasons was necessary to maintain the public order; that the punishments were imposed due to the emergence of public disorder or such a risk; or that the participants failed to comply with their duties and responsibilities that are inherent in their rights and freedoms during the exercise of this constitutional right (see Eğitim ve Bilim Emekçileri Sendikası and Others, § 92).
54. In the present case, there were two groups of protesters: the second group, which gathered after the first group had dispersed upon the police warning, was dispersed without any warning at all. According to the bill of indictment and the judgment of the inferior court, the first group (that dispersed on its own upon the police warning) and the second group (that was dispersed by the authorities) were comprised of different people. Besides, there is no indication that the applicant’s group (i.e. the group of protesters of which the applicant was a part) acted in such a way that would remove the peaceful nature of the demonstration.
55. In cases where demonstrators have not been involved in violent acts, the public authorities should be tolerant up to a certain extent towards the right to hold meetings and demonstration marches. In principle, a peaceful demonstration or press statement should not be subjected to a threat of criminal sanction. If, as in the present case, the demonstration is held in a university campus and the participants are university students, the extent of tolerance to be displayed should be even higher since universities come first among the places where ideas are freely expressed and debated. Furthermore, the demonstration in question was held on the anniversary of the coup d’état of September 12. Preventing the individual and collective expression of opinions regarding social and political matters through various means such as holding meetings and demonstrations on the anniversary of such an important event would undermine the foundations of the democratic society.
56. In conclusion, the Court observed in the present case that a fair balance had not been struck between the measures deemed necessary for achievement of the legitimate aims provided in Article 34 § 2 of the Constitution and the applicant’s rights enshrined in Article 34 § 1. The Court concluded that dispersing the demonstration by the use of police force, taking the applicant into custody, and placing the applicant under a three-year probation period by suspending the prosecution against her was not necessary for achieving the legitimate aim of maintaining the public order envisaged in Article 34 § 2 of the Constitution.
57. Consequently, the Court has found a violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution.
Justices Mr. Kadir ÖZKAYA and Mr. Recai AKYEL did not agree with this conclusion.
58. The applicant complained of an alleged violation of the right to a trial within a reasonable time.
59. The alleged violation of the right to a trial within a reasonable time was declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.
60. In the calculation of the length of criminal proceedings, the period to be taken into account begins to run as soon as a person is informed by the competent authorities of the fact that he is charged or on the date when the person is first affected by the charge due to the application of certain measures such as search and custody; and it ends once the final decision is delivered in respect of the criminal charge or when, with regard to on-going proceedings, the Court renders its ruling on an alleged violation of the right to a trial within a reasonable time (see B.E., no. 2012/625, 9 January 2014, § 34).
61. Matters such as the complexity of a case, levels of the jurisdiction, the attitude of the parties and the relevant authorities during the trial and the quality of the interest of the applicant in the speedy conclusion of the case are the criteria which are taken into consideration in the determination of whether or not the period of a criminal case is reasonable (ibid., § 29).
62. In view of the above-mentioned principles and the Court’s previous judgments in similar applications, the length of the proceedings in the present case that lasted for nearly 6 years and 3 months must be considered unreasonable.
63. For these reasons, it must be held that there was a violation of the right to a trial within a reasonable time protected under Article 36 of the Constitution.
C. Application of Article 50 of Code no. 6216
64. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:
“(1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled...
(2) If the determined violation arises out of a court decision, 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 favour 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 decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”
65. The applicant claimed non‑pecuniary compensation.
66. In the present application, the Court found that there were violations of the right to hold meetings and demonstration marches and the right to trial within a reasonable time.
67. Since there is legal interest in holding a retrial to remove the consequences of the violation of the right to hold meetings and demonstration marches, a copy of the judgment must be remitted to the 55th Chamber of the İstanbul Criminal Court (no. E.2014/39) for retrial.
68. As regards the non-pecuniary damages sustained by the applicant due to the violation of her right to hold meetings and demonstration marches and right to a trial within a reasonable time, which cannot be redressed by a mere finding of a violation, the Court awarded 6,000 Turkish liras (“TRY”) (net) to the applicant as non-pecuniary compensation.
69. The total court expense of 2,006.10 Turkish liras (TRY) including the court fee of TRY 206.10 and the counsel fee of TRY 1,800, which is calculated over the documents in the case file, must be reimbursed to the applicant.
V. JUDGMENT
For these reasons, the Constitutional Court held on 30 November 2017:
A. 1. UNANIMOUSLY that the alleged violation of the right to hold meetings and demonstration marches be declared ADMISSIBLE;
2. UNANIMOUSLY that the alleged violation of the right to a trial within a reasonable time be declared ADMISSIBLE;
B. 1. By MAJORITY and by dissenting opinion of Mr. Kadir ÖZKAYA and Mr. Recai AKYEL, that the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution was VIOLATED;
2. UNANIMOUSLY that the right to a trial within a reasonable time safeguarded by Article 36 of the Constitution was VIOLATED;
C. A copy of the judgment be REMITTED to the 55th Chamber of the İstanbul Criminal Court (no. 2014/39) for a retrial to remove the consequences of the violation of the right to hold meetings and demonstration marches;
D. A net amount of TRY 6,000 be PAID to the applicant as non-pecuniary compensation;
E. The total court expense of TRY 2,006.10 including the court fee of TRY 206.10 and counsel fee of TRY 1,800 be REIMBURSED TO THE APPLICANT;
F. The payment be made within four months as from the date when the applicant applies to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date; and
G. A copy of the judgment be SENT to the Ministry of Justice.
1. On 12 September 2008 an opening ceremony of the academic year was held at the Süleyman Demirel Cultural Center (“the Center”) of İstanbul Technical University (“ITU”). The Prime Minister attended the ceremony along with certain high-ranking State officials and politicians.
2. It has been understood from the documents in the file that an announcement was made on an online forum that the ITU opening ceremony would be held on 12 September 2008 (the date of the incident), to which the Prime Minister was also invited but, contrary to the traditional practice, students would not be admitted to the ceremony that year. The announcement in question invited the students to participate in the press statement planned to be held on that date and it contained the text of the statement. Although it is unclear whether the applicant had any knowledge, some of the persons participating in the meeting were informed of the announcements made in the forum website.
3. As the ceremony was starting, a group of protesters gathered in front of the Center, carrying banners and uttering slogans such as “AKP outside” (“AKP dışarı”), “Universities are ours, we won’t leave them to so-called ‘liberal’ bigots” (“Üniversiteler bizimdir, liboşa, yobaza bırakmayız”), and “The Child of September 12, celebrate your birthday somewhere else” (“12 Eylül Çocuğu doğum gününü başka yerde kutla”). This group dispersed upon the warning and intervention of the police. Shortly after, another group which may or may not have been comprised of the same persons as the first group came to the incident scene at around 10.40 a.m. and uttered slogans. This second group carried banners reading “The turning point at ITU in its 235th year: the person on the right side of the photograph, the Keynote Speaker of the ITU Opening Ceremony” (“235. Yılda İTÜ'de dönüm noktası fotoğrafın sağındaki insan, İTÜ Açılış Töreni Baş Konuşmacısı”), “A Film of the AKP Government: the Great Occupation .... the story of AKP’s occupation of the university...” (“Bir AKP Hükümeti Filmi, Büyük İşgal .... AKP'nin üniversite işgalinin hikayesi...”), and “ITU is not a Madrassa, the Rector’s Office is not an AKP Branch Office” (“İTÜ Medrese, Rektörlük AKP Şubesi değildir”).
4. The group did not march but, as indicated above, only gathered in front of the Center, where they uttered slogans and read out a press statement. The police did not use any violence against the group but gave a warning and a call to disperse. When the group refused to disperse and the university’s private security staff expressed a request, the police conducted the procedures necessary for initiation of criminal proceedings against 18 individuals (including the applicant) for the offence of organising and participating in an unlawful meeting or demonstration march due to the non-fulfilment of the legal requirements for holding the meeting and also due to the rising concerns for security and public order.
5. At the end of the trial, the 55th Chamber of the İstanbul Criminal Court decided on 29 November 2014 to suspend the criminal proceedings against the applicant on the ground that her act fell within the scope of the Law on Amendment of Certain Laws to Increase the Efficiency of Judicial Services and the Suspension of Penalties and Cases Regarding Crimes Committed via the Press (Law no. 6352, dated 2 July 2012).
6. The applicant contended, in particular and in brief, that her constitutional rights were violated due to the fact that “the liberty of imparting thoughts and opinions” had beensubjected to trial, irrespective of the verdict rendered in the end. She further argued that, even though it did not entail a conviction, the imputed offence was regarded as an offence that had been committed “via the methods of imparting thoughts and opinions”, which caused a violation of her constitutional rights.
7. The Court considered that the applicant’s complaints, other than the one concerning the right to a trial within a reasonable time, should be examined under the right to hold meetings and demonstration marches. We agree with this consideration.
8. After holding an examination on the alleged violation of the right to hold meetings and demonstration marches, the majority of our Court arrived at the conclusion that the interferences with the applicant’s right at issue (i.e. the police intervention and the court decision) were prescribed by law and pursued a legitimate aim, which did not constitute a violation from those aspects, but the interference in question was not necessary for maintaining the public order.
9. We do not agree with this conclusion due to the reasons listed below.
10. In line with the case-law of the Court, the majority held that, in cases involving an interference with the right to assembly, the State institutions were required to show with relevant and sufficient reasons that there was public disorder or the risk of disorder when the impugned incidents were taking place. Within that scope, the majority concluded that the interference with the right to assembly was not justified with relevant and sufficient reasons in the present case. In our opinion, the esteemed majority of the Court assessed the circumstances of the case insufficiently.
11. It has been understood from the file that
- The organisers of the impugned meeting had known about the date and venue of the opening ceremony and that the Prime Minister would be attending to the ceremony but they did not give prior notice to the authorities regarding the meeting and demonstration;
- The police and especially the private security staff of the university considered, in view of the banners held and the slogans uttered by the demonstrators (though no legal action was taken due to the contents of the banners or slogans), that the demonstration had reached to such a level that would prevent the performance of the on-going ceremony in a peaceful, calm and safe environment; therefore, the police initially warned the demonstrators and then, as they refused to disperse, intervened in the assembly by initiating a legal process;
- There has been no allegation or finding suggesting that the police applied violence on those participating in the assembly.
12. The demonstration in question was held on the anniversary of the coup d’état of September 12. It is common knowledge that, every year, certain groups hold non-peaceful meetings and demonstrations on that day. Secondly, the Prime Minister of the Republic of Turkey was present at the place where the applicant and other individuals were holding a demonstration. It might have been deemed necessary to take stricter and more escalated measures for the security of the Prime Minister due to certain special circumstances.
13. At a ceremony held for such a non-political purpose as the opening of the academic year of a university and the inauguration of a cultural center, certain individuals held a demonstration meeting which is considered not to be related to the ceremony or in compliance with the law due to the way it was held and in which participants uttered such slogans that caused a constant concern of a potential disruption to the peace and safety in the security officers, who were charged with the duty of maintaining the peace and calm around the ceremony. Furthermore, it cannot be said that the opening ceremony, which had a completely peaceful purpose and which was held in a peaceful manner, was not negatively affected by the atmosphere created by the slogans chanted.
14. In the case in question, at a time when the need for security was at a high level, the police initially warned the demonstrating group to disperse with a view to maintaining the security and ensuring the peaceful and calm conduct of the opening ceremony. Nevertheless, the demonstrators gathered once again while the Prime Minister’s programme was still under way. The police officers assigned with ensuring the Prime Minister’s safety saw the crowd, who had re-grouped despite the warning, as a threat and intervened in the demonstration. It was the law enforcement officers who were in a position to analyse the circumstances of the instant case the best. On the basis of the incident reports related to the impugned case, there are no reasons not to arrive at the conclusion that the police showed with a relevant and sufficient justification that there was public disorder or a risk of disorder when the incident was taking place.
15. Therefore, in the light of these explanations, we cannot say that it was not necessary in a democratic society to forcefully disperse the demonstration, which was considered to be posing a threat and which refused to disperse despite all warnings, and to initiate a legal procedure against the applicant, who was established to have taken part in the demonstration.
16. On the other hand, the applicant was not punished. The prosecution conducted against her was suspended. Accordingly, as long as she did not commit an offence within the same scope in the three-year period following the decision of suspension, the pending case would be discontinued. If she did, in fact, commit such an offence in that period, the prosecution against her would be continued. In other words, the applicant was not punished but simply placed under supervision for a period of three years. The applicant will not be subject to any other legal procedure at the end of this period. In fact, the three-year period running as from the delivery of the first instance court’s decision (28 November 2014) has been completed as of the date of the Court’s judgment (30 November 2017). Seeing no other information to the contrary in the file, we conclude that the case at issue was discontinued as of 30 November 2017. Therefore, no legal action or procedure has been performed against the applicant due to the above-mentioned decision of suspension. This being the case, we reach the conclusion that the impugned interference cannot be regarded as unnecessary or disproportionate.
17. For these reasons, in our opinion, it should be held that there has been no violation of the right to hold meetings and demonstration marches protected under Article 34 of the Constitution in the present case. Thus, we do not agree with the opinion of the esteemed majority in so far as relevant to this part of the case.
