15 November 2018 Thursday

Sevinç Hocaoğulları (no. 2015/271, 15 November 2018)

The Facts

Members of the solidarity platform formed by various democratic mass organizations, (ten persons) including the applicant, wanted to issue a press statement to protest the Soma mine accident where 301 miners lost their lives and to condemn the police intervention in the demonstrations held the day before.

Members of the platform informed the law enforcement officers that they would issue a press statement. Immediately afterwards, the police officers intervened in the group. The CD images submitted by the applicant revealed that the police officers had surrounded the group and taken them holding by the arms.

The applicant filed a criminal complaint with the chief public prosecutor’s office (prosecutor’s office) against the police officers for intentional injury, professional misconduct and exceeding the limits of use of force. The prosecutor’s office issued a decision of non-prosecution.

The magistrate judge rejected the applicant’s objection to the decision of the prosecutor’s office with final effect. The magistrate judge also specified that there was no report in the file indicating that the applicant had been injured. Nor was there any information that the applicant had been taken into custody. Subsequently, the applicant lodged an individual application.

The Applicant’s Allegations

The applicant maintained that their prevention from issuing a press statement by the police officers was in breach of their right to hold meetings and demonstration marches.

The Court’s Assessment

The Constitutional Court examined whether the police intervention in the group of people who had gathered to issue a press statement peacefully or to attend the press statement had been necessary in a democratic society.

The situations in which the meetings and demonstration marches shall be deemed unlawful are listed in Law no. 2911. However, the mere reason that a meeting or a demonstration march was not organized in accordance with the procedure stipulated by the Law is not sufficient for an intervention.

In order to intervene in a group of people who have gathered peacefully, it must be demonstrated by the competent authorities that the public order is at stake or that the group have failed to act in accordance with their rights, duties and responsibilities.

In the present case, also considering that the meeting organized two days after the mine accident was an instant reaction that was necessary, failure to inform the administration in advance cannot be considered alone as constituting a sufficient justification for dispersing the meeting.

There is also no observation that the protest demonstration in question had hindered certain activities, that it had disturbed the public order or that it had weakened the security measures. Despite the lack of such situations, the police officers prevented the applicant and his friends from protesting the mine accident in a peaceful manner and from issuing a press statement. In cases where the demonstrators are not involved in acts of violence, public authorities must tolerate the right to hold meetings and demonstration marches to a certain extent.

In addition, according to the case-law of the Court of Cassation, in cases where an interference with the right to hold meetings and demonstration marches is necessary, the demonstrators must be warned. However, such a warning, which must be given before intervention, must be given by appropriate means, as well as a reasonable time must be allowed after the warning. In the incident, the police had warned the demonstrators to disperse, but intervened almost simultaneously. Thus, the warning had not been given in accordance with the procedure envisaged.

It has been concluded that the alleged intervention did not correspond to a pressing social need, nor did it comply with the requirements of a democratic social order in maintaining the legitimate interest of public order.

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