20 September 2018 Thursday

Ali Demirci ve Diğerleri (no. 2015/16311, 20 September 2018)

The Facts

The applicants, members of the Organization Board of the demonstration march subject to the present application, organized a demonstration march themed “No to Cyanide”, having duly informed the administration.

A group of approximately 500 persons attended this march by holding banners. After the press statement, the group did not disperse despite the warnings and went to another place by car.

An action was brought against the applicants for violating Law no. 2911 on the ground that they did not end their march within the previously designated place and that they did not submit the necessary report to the police pursuant to the mentioned law.

The criminal court of first instance sentenced the applicants to 5 months’ imprisonment and suspended the pronouncement of the judgment. The applicants’ appeal was dismissed by the assize court, therefore they lodged and individual application.

The Applicants’ Allegations

The applicants maintained that the suspension of the pronouncement of the judgment for their participation in the demonstration march was in breach of their right to hold meetings and demonstration marches.

The Court’s Assessment

The applicants’ being placed on probation for five years with the decision on suspension of the pronouncement of the judgment must be considered as an interference with their right to hold meetings and demonstration marches. Acknowledging that such an interference had a legal basis and pursued the legitimate aim of maintaining the public order, it must be assessed whether it was necessary in a democratic society and was proportionate.

The Constitutional Court does not consider that a duly organized meeting or demonstration march alone justifies an interference with fundamental rights and freedoms. It must be demonstrated by the competent authorities (in police reports, indictments or reasoning of the inferior courts’ decisions) that for some specific reasons, an interference with a meeting or demonstration march is necessary in order to maintain the public order.

In cases where the demonstrators do not resort to violence or do not lead to a social disorder, the public authorities must tolerate, to a certain extent, the right to hold meetings and demonstration marches. A peaceful demonstration or press statement must, in principle, not be subject to a threat of criminal sanction.

In this scope, certain procedural shortcomings such as the conduct of a demonstration march out of the designated places or failure to submit or delayed submission of a report indicating that the chairman and members of the Organization Board were present at the meeting place were not alone sufficient to justify that the demonstration was not peaceful. Therefore, imposition of 5 months’ imprisonment and suspension of the pronouncement of the judgment against those holding a peaceful meeting and demonstration march which did not involve any acts of violence did not justify the interference.

In the present case, it was not stated in the first instance decision whether the meeting and demonstration march had been peaceful, whether the social life had been affected by the alleged event and whether it had disturbed the social order. Nor was it mentioned in the relevant decision that the demonstrators had gathered to serve a significant public interest and expressed their opinions in a peaceful manner. The applicants were punished solely on the basis of procedural shortcomings.

The relevant decision that put the applicants under the threat of criminal sanction due to a peaceful demonstration, as a rule, failed to strike a balance between the measures deemed necessary to achieve the legitimate aims and the right to peaceful assembly. Accordingly, the decision on suspension of the pronouncement of the judgment would have a deterrent effect on the applicants’ subsequent attempts to organize a meeting and demonstration march or to attend such activities.

In the present case, it was concluded that the placement of the applicants on probation for five years with the decision on suspension of the pronouncement of the judgment had not been necessary to achieve the legitimate aim of maintaining the public order specified in the Constitution.

Consequently, the Constitutional Court found a violation of the applicants’ right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution.