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SECOND
SECTION
CASE OF AKGÖL AND GÖL v. TURKEY
(Applications
nos. 28495/06 and 28516/06)
JUDGMENT
STRASBOURG
17
May 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Akgöl and Göl
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
David
Thór Björgvinsson,
Giorgio Malinverni,
András
Sajó,
Işıl Karakaş,
Paulo
Pinto de Albuquerque, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 12 April 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 28495/06 and 28516/06)
against the Republic of Turkey lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by two Turkish nationals, Mr
Ali Akgöl and Mr Hakan Göl, on 30 June 2006.
- The
applicants were represented by Mr Aydın Erdoğan, a lawyer
practising in Ankara. The Turkish Government (“the Government”)
were represented by their Agent.
- The
applicants alleged, in particular, that their right to freedom of
assembly had been breached on account of the intervention of security
forces in a demonstration in which they were taking part.
- On
28 January 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the applications at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1980 and 1979 and live in Hatay and Urfa
respectively.
- On
3 May 1998 Kenan Mak, a student at the Abant İzzet Baysal
University in Bolu (“the university”), was killed in an
attack. Thereafter, on 3 May of every subsequent year students
at the university have held a meeting to mark the anniversary of the
killing.
- On
3 May 2002 the two applicants were studying at the university when
they attended the remembrance meeting. The day before the meeting the
chancellor of the university had indicated his approval of the
meeting taking place in the canteen of the university.
- According to a report drawn up by gendarmes who were
responsible for the security of the university, seventy to eighty
“left wing students” wearing photographs of Kenan Mak
gathered in the university’s canteen on 3 May 2002. The
students then proceeded to the university’s garden where they
were met by the gendarme Captain, F.Y. Captain Y. told the students
that their gathering was in breach of the Meetings and Demonstration
Marches Act (Law no. 2911) because they were not holding it
in the designated place, namely the canteen. He asked the students to
disperse, and warned that “otherwise force would be used”
to disperse them. Instead, the students displayed a banner stating
“down with fascism, Kenan Mak is immortal” and chanted
slogans such as “shoulder to shoulder against fascism”.
The students then started walking towards the chancellor’s
offices. The gendarmes present in the vicinity used force and
dispersed the students. The applicants and seven other students were
arrested by the gendarmes. During the scuffle Captain Y.’s
little finger and a gendarme’s leg were injured by the
students.
- The
applicants were questioned the same day by gendarme officers, and
stated that they were aware that prior permission had been sought and
granted for the meeting.
- The
same day the applicants were examined by a doctor. The applicants did
not complain about any ill-treatment and the doctor did not observe
any injuries on their bodies. They were then sent to the prosecutor’s
office where their release was ordered.
- The
gendarme whose leg was injured during the incident informed the
prosecutor on 28 May 2002 that the name of the student who injured
him was C.G.
- On
5 July 2002 the Bolu prosecutor filed an indictment with the Bolu
Criminal Court of First Instance (hereinafter the “trial
court”), and accused the applicants and the remaining seven
students of “breaching Law no. 2911”. The prosecutor
also stated in his indictment that the applicants and C.G. had
punched and kicked the gendarme captain and the gendarme.
- In
the course of the criminal proceedings the applicants rejected the
allegations of the use of force by them, but accepted that they had
taken part in the demonstration. Captain Y. was not heard by the
trial court, but was questioned by a court in another city, pursuant
to a letter rogatory sent to that court by the trial court.
- On
6 May 2003 the trial court, on the basis of statements given by
eyewitnesses, gendarmes, as well as “video footage of the
incident”, convicted the applicants of having taken part in an
illegal demonstration and of having used force when the gathering was
being dispersed by the gendarmes, in breach of section 32 § 3 of
Law no. 2911. According to the judgment, in addition to Captain Y.
and the gendarme mentioned above, four other gendarmes had also
apparently been injured by the applicants and their fellow student
C.G. The applicants were sentenced to two years and six months’
imprisonment.
- The
applicants appealed against the judgment, and argued that there had
been insufficient evidence to warrant their conviction and that they
had not been given the opportunity to examine the video footage. In
their appeals the applicants referred to their constitutional right
to take part in, inter alia, peaceful demonstrations. Finally,
the applicants drew the Court of Cassation’s attention to the
fact that similar gatherings had been organised in the past to
commemorate Kenan Mak’s death and that there had never been any
problems caused by those gatherings.
- On
9 March 2006 the Court of Cassation upheld the judgment of the
first-instance court in respect of the applicants.
- The
applicants asked the prosecutor at the Court of Cassation to apply to
that court for rectification of the decision of 9 March 2006. In
their letter to the prosecutor the applicants also pointed out that
none of the injured gendarmes had accused them of inflicting their
injuries.
- The
prosecutor accepted the applicants’ request and on 31 July 2006
applied to the Court of Cassation’s president for rectification
of the decision. In his application the prosecutor noted that none of
the injured gendarmes had named the applicants as the persons
responsible for their injuries. The prosecutor referred to Article 11
of the Convention and argued that university grounds could not be
regarded as public places within the meaning of Law no. 2911 and that
the applicants’ and their fellow students’ actions could
not therefore be regarded to be in breach of that Law. The students’
failure to hold their meeting in a place other than the one for which
permission had been granted could only be regarded as a disciplinary
issue and dealt with by the university administration and not by
courts of law.
- The
prosecutor also noted that the disturbance in the demonstration had
been caused by the gendarmes’ intervention. Moreover, the
reports drawn up by the gendarmes who had taken part in the operation
(see paragraph 8 above) had not made any mention of physical
resistance by the students. The trial court had not examined the
video footage and had not asked the injured gendarmes to identify the
persons responsible for their injuries. As such, the trial court’s
decision to convict the applicants under section 32 § 3 of the
Law no. 2911 had not been in accordance with applicable law and
procedure.
- In
its decision of 10 October 2006 the Grand Chamber of the Court of
Cassation’s Criminal Division observed that the transcripts of
one of the hearings held by the trial court did not bear the
signature of the court’s clerk, and quashed the decision
convicting the applicants. It deemed it unnecessary to examine the
points raised by the prosecutor.
- A
retrial began before the trial court, which rendered its decision on
24 October 2007. Having examined the video footage, the trial
court observed that eleven and a half minutes had elapsed between the
beginning of the gathering and its dispersal by the gendarmes. It
also noted that neither the applicants nor any of the other
participants in the demonstration had used force against the
gendarmes. Nevertheless, the trial court considered that the
applicants and the other students had taken part in an unauthorised
meeting and had thus acted in breach of section 32 §1 of Law
no. 2911. According to the trial court, the gathering had been
unlawful because it had not been organised in the canteen but rather
had taken place outside. The applicants were sentenced to one year
and three months’ imprisonment, but the sentence was suspended.
- The
applicants appealed. The appeal proceedings are still pending before
the Court of Cassation.
- In
the meantime, on account of his participation in the demonstration,
on 9 December 2002 the university imposed a disciplinary
sanction on the first applicant Ali Akgöl, and expelled him from
the university for two semesters. As the university’s decision
was not quashed by the administrative courts until 2004, the decision
was enforced and the applicant’s graduation from the university
was thus delayed for one year.
- Also
in the meantime, the first applicant completed his studies and
started working as a teacher. Nevertheless, on 22 August 2006 the
Ministry of Education dismissed him from his post on account of his
attendance at the demonstration. He was reinstated in his post in
July 2007, following the quashing of his conviction by the Court of
Cassation (see paragraph 20 above).
II. RELEVANT DOMESTIC LAW
- At
the material time section 10 of the Meetings and Demonstration
Marches Act (Law no. 2911) was worded as follows:
“In order for a meeting to take place, the
governor’s office or authorities of the district in which the
demonstration is planned must be informed, during opening hours and
at least seventy-two hours prior to the meeting, by a notice
containing the signature of all the members of the organising
board...”
- Section
22 of the same Act prohibits demonstrations and processions on public
streets, in parks, places of worship and buildings in which public
services are based. Demonstrations organised in public squares must
comply with security instructions and not disrupt individuals’
movement or public transport. Finally, section 24 provides that
demonstrations and processions which do not comply with the
provisions of this law will be dispersed by force on the order of the
governor’s office and after the demonstrators have been warned.
- Section
32 of the Act, in so far as relevant, provided as follows:
“1. Unarmed persons taking part in an unlawful
meeting or procession who, instead of dispersing of their own motion
after having been warned or ordered to do so and who thus have to be
forcefully dispersed by government forces, are liable to be sentenced
to a term of imprisonment of between one and three years.
...
2. Unless their action breaches another criminal law
provision which stipulates a more severe punishment, persons who
resort to violence or making threats while being dispersed, or who
resist the attempts to disperse them, are liable to be sentenced to a
term of imprisonment of between three and five years.
...”
THE LAW
- Given
the similarity of the applications, as regards both fact and law, the
Court deems it appropriate to join them.
I. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE
CONVENTION
- The
applicants maintained under Articles 10 and 11 of the Convention that
the gendarmes’ intervention in the demonstration had infringed
their freedom of thought and expression and their right to peaceful
assembly.
- The
Court considers that the applicants’ complaints should be
examined from the standpoint of Article 11 of the Convention alone,
which reads in so far as relevant as follows:
“1. Everyone has the right to freedom
of peaceful assembly ...
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 ...public
safety [and] for the prevention of disorder or crime...”
- The
Government contested that argument.
A. Admissibility
- The
Government argued that the applicants had failed to comply with the
requirement to exhaust domestic remedies because the proceedings at
national level were still continuing.
- The
Court observes that the proceedings referred to by the Government,
namely the criminal proceedings brought against the applicants by
public prosecutors for an alleged breach of the provisions of the
Meetings and Demonstration Marches Act, have now been pending for
over eight years. The Court also observes that, in the course of
these proceedings, which stop the running of the six-month period
(see Ersoy v. Turkey, no. 43279/04, § 38, 28 July
2009, and Aşıcı and others v. Turkey,
no. 17561/04, 15 June 2010, § 24), the applicants invoked
the substance of their rights under Article 11 of the Convention by
referring to their constitutional right to take part in peaceful
demonstrations (see paragraph 15 above). In light of the above,
and having particular regard to the excessive time it is taking the
national courts to conclude the case, the Court does not consider it
necessary for the applicants to wait for the conclusion of the
proceedings. It follows that the Government’s objection in this
connection must be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- The
Government maintained that the applicants had not been deprived of
their rights under Article 11 of the Convention.
- The
Court considers that the gendarmes’ intervention, the
subsequent arrest of the applicants for participating in the
demonstration, and the prolonged criminal proceedings against the
applicants constitute an interference with the applicants’
rights under Article 11 of the Convention.
- As
pointed out above, the criminal proceedings against the applicants
are still pending in Turkey. Nevertheless, having regard to the
length of time those proceedings have already taken, the Court does
not deem it necessary to wait for their conclusion before examining
the merits of the applicants’ complaints under Article 11 of
the Convention. To that end the Court notes, firstly, that even if
the applicants are acquitted at the end of the criminal proceedings,
such an acquittal would not alter the fact that there has already
been an interference with the applicants’ rights under
Article 11 of the Convention on account of the gendarmes’
intervention in the meeting and the applicants’ subsequent
arrest (see paragraph 36 above).
- Although
the Government did not seek to argue that the interference had a
legal basis and that it had a legitimate aim, the Court notes that
the legal basis for the interference was section 32 of the Meetings
and Demonstration Marches Act, and the interference was thus
“prescribed by law” within the meaning of Article 11
§ 2 of the Convention. As regards a legitimate aim, the Court is
prepared to accept that the interference pursued the legitimate aims
of preventing disorder or protecting public safety.
- Turning
to the question of whether the interference was “necessary in a
democratic society”, the Court refers to the fundamental
principles underlying its judgments relating to Article 11 of the
Convention (see, in particular, Oya Ataman v. Turkey, no.
74552/01, §§ 35-37, ECHR 2006 XIII and the judgments
cited therein).
- An
aspect of the incident which is crucial for the Court’s
examination has already been established by the national authorities;
on the basis of the video footage of the demonstration, the domestic
courts have already established that the gathering had been a
peaceful one and that neither the applicants nor any other student
had resorted to any acts of violence in the course of the
demonstration (see paragraph 21 above).
- The
proceedings which are still being conducted concern only the question
of whether or not the applicants took part in an unlawful
demonstration. The Court notes that, according to Law no. 2911,
a meeting will be unlawful if prior notice of it has not been given
to the relevant authorities (see paragraph 25 above). In this
connection, the Court reiterates that any demonstration in a public
place may cause a certain level of disruption to ordinary life and
encounter hostility. Therefore, in order to enable the domestic
authorities to take the necessary preventive security measures,
associations and others organising demonstrations, as actors in the
democratic process, should respect the rules governing that process
by complying with the regulations in force. Nevertheless, it also
points out that an unlawful situation does not justify an
infringement of freedom of assembly and that regulations of this
nature should not represent a hidden obstacle to freedom of peaceful
assembly as protected by the Convention (Samüt Karabulut
v. Turkey, no. 16999/04, § 35, 27 January 2009 and
the cases cited therein).
- In
the instant case, the Court observes that the group in question
concerned around seventy to eighty people. It appears that they were
carrying banners and chanting slogans to protest against the killing
of their fellow student. In this connection, the Government gave no
particular reasons, such as the specificities of the location of the
demonstration, to show that this group represented a danger to public
order or public safety. Having particular regard to the fact that the
gathering took place on the grounds of a university, and without
taking a position on the application of Law. no. 2911 to
university premises, the Court finds no such evidence of its own
motion.
- Moreover, the Court reiterates that, where
demonstrators do not engage in acts of violence, as was the case in
the present application, it is important for the public authorities
to show a certain degree of tolerance towards peaceful gatherings if
the freedom of assembly guaranteed by Article 11 of the
Convention is not to be deprived of all substance (see Nurettin
Aldemir and Others v. Turkey, nos. 32124/02, 32126/02,
32129/02, 32132/02, 32133/02, 32137/02 and 32138/02, § 46, 18
December 2007). The Court is concerned by the fact that the
applicants were prosecuted - and convicted at first instance
- on account of the mere fact of their participation in an
unauthorised but peaceful demonstration. It considers
that a peaceful demonstration should not, in principle, be
made subject to the threat of a penal sanction.
- The
Court also observes that the dispersal was quite prompt. According to
the video footage, the demonstration lasted just over eleven minutes.
Consequently, it is not satisfied that the applicants had sufficient
time – together with their fellow demonstrators – to
manifest their views (see Oya Ataman, cited above, §§
41-42).
- Accordingly,
the Court considers that in the instant case the interference with
the applicants’ rights under Article 11 of the Convention was
disproportionate and was not necessary for preventing disorder within
the meaning of the second paragraph of that provision.
- There
has accordingly been a violation of Article 11 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicants complained under Article 6 of the Convention that they had
been denied a fair hearing. In this connection, they claimed that the
domestic courts had failed to take into account the evidence in their
favour and had relied solely on the incident report. They further
criticised the fact that they had been denied the opportunity to ask
Captain Y. questions because he had been heard by a judge of another
court pursuant to a letter rogatory.
- The
Government contested that argument.
- The Court notes that the criminal proceedings against
the applicants are still pending before the Court of Cassation. It is
therefore unable to examine the entire criminal proceedings in order
to express an opinion as to whether they comply with the requirements
of Article 6 of the Convention. Accordingly, the introduction of the
above complaints appears to be premature given the current state of
the proceedings (see İzmirli v. Turkey, no. 30316/02,
§§ 33-34, 26 June 2007).
- It
follows that this part of the application must be declared
inadmissible for non-exhaustion of domestic remedies within the
meaning of Article 35 §§ 1 and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
first applicant (Ali Akgöl) claimed 9,450 euros (EUR) in respect
of pecuniary, and EUR 15,000 in respect of non-pecuniary damage. In
support of his claims he referred to his delayed graduation from the
university and his removal from his teaching post for a period of
nine months (see paragraphs 23 and 24 above).
- The
second applicant (Hakan Göl) claimed EUR 10,000 in respect of
non-pecuniary damage.
- The
Government considered that there was no causal link between the
applicants’ alleged losses and a possible violation of the
Convention. They also argued that the claims were speculative,
excessive and unsubstantiated with any documentary evidence.
- As for the claims made by the first applicant in
respect of pecuniary damage, the Court notes that the first applicant
has not substantiated his claim with adequate documentation or
information. It therefore rejects this claim. On the other hand, the
Court considers that the two disciplinary actions brought against
this applicant, which had the effect of delaying his graduation from
the university by one year and removing him from his teaching post
for a period of nine months, must have exacerbated his frustration
and distress. Thus, ruling on an equitable basis, the Court awards
the first applicant EUR 12,000 in respect of non-pecuniary damage.
- Also
ruling on an equitable basis, the Court awards the second applicant
EUR 9,000 in respect of non-pecuniary damage.
B. Costs and expenses
- Each
applicant also claimed EUR 5,000 for the costs and expenses incurred
before the Court. No documentary evidence was submitted by the
applicants in support of their claims.
- The
Government asked the Court to dismiss the applicants’ claims
for costs and expenses.
- According
to the Court’s case-law, an applicant is entitled to
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, the applicants have
not substantiated that they have actually incurred the costs claimed.
In particular, they failed to submit documentary evidence, such as a
contract, a fee agreement or a breakdown of the hours spent by their
lawyer on the case. Accordingly, the Court makes no award in respect
of their lawyer’s fees.
C. Default interest
- The
Court considers it appropriate that default interest should be based
on the marginal lending rate of the European Central Bank, to which
should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Decides to join the applications;
- Declares the complaints concerning the
applicants’ right to freedom of assembly admissible and the
remainder of the applications inadmissible;
- Holds that there has been a violation of Article
11 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicants, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following sums, plus any
tax that may be chargeable, in respect of non-pecuniary damage, to be
converted into Turkish liras at the rate applicable at the date of
settlement:
(i) EUR
12,000 (twelve thousand euros) to the first applicant, Ali Akgöl,
and
(ii) EUR
9,000 (nine thousand euros) to the second applicant, Hakan Göl;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 17 May 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
