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SECOND
SECTION
CASE OF PEKASLAN AND OTHERS v. TURKEY
(Applications
nos. 4572/06 and 5684/06)
JUDGMENT
STRASBOURG
20
March 2012
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 Pekaslan and Others v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Isabelle
Berro-Lefèvre,
András Sajó,
Işıl
Karakaş,
Paulo Pinto de Albuquerque,
Helen
Keller, judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 21 February 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 4572/06 and
5684/06) 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
five Turkish nationals, Ms
Nihal Pekaslan, Ms Refika Meltem İspir, Ms Kıvanç
Pekaslan, Mr İbrahim Bozay and Ms Leyla Bozay
(“the applicants”), on 24 January 2006 and 2 February
2006.
- The
applicants were represented by Mr Serkan Cengiz and Ms Nalan
Erkem, lawyers practising in İzmir. The
Turkish Government (“the Government”) were represented by
their Agent.
3. The
applicants alleged, in particular, that the intervention of a
number of police officers and the force used by those police officers
against them in a demonstration in which they were taking part had
violated their rights under Articles 3 and 11 of the Convention.
- On
7 June 2010 the President of the Second Section
decided to give notice of the applications 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
THE CIRCUMSTANCES OF THE CASE
A. Introduction
- The
applicants were born in 1961, 1972, 1985, 1956
and 1962 respectively and live in Malatya.
- As
the facts of the case are in dispute between the parties, they will
be set out separately. The facts as presented by the applicants are
set out in section B below (paragraphs 7-13). The Government’s
submissions concerning the facts are summarised in section C below
(paragraphs 14-20). The documentary evidence submitted by the
applicants and the Government is summarised in section D
(paragraphs 21-41).
B. The applicants’ submissions on the facts
- On
8 March 2005 the applicants took part in International Women’s
Day celebrations in the city of Malatya, during which a group
comprising hundreds of police officers formed a cordon around the
crowd. The police chief warned the participants that no prior
permission had been obtained for the gathering.
- The
first applicant, Ms Nihal Pekaslan, who was a spokesperson for the
Women’s Democratic Platform, told the police chief that they
were exercising their constitutional right and that the applicable
legislation required no prior permission.
- Police
officers then dragged a number of persons, including four of the
applicants, into waiting police vehicles. In the course of so doing,
the police officers sprayed the crowds with tear gas and
hit some of them, including the four applicants.
- The
second applicant, Ms Refika Meltem İspir, was not arrested.
She was not beaten up, but was sprayed with tear gas. She was
accompanied by her eleven-year-old daughter and her mother, both of
whom were also sprayed with tear gas.
- The
ill-treatment continued in the police vehicles. Male police officers
started squeezing the arms and legs of the detained women. When the
women told the police officers that they had no right to behave like
that and asked for female police officers to accompany them, they
were sworn at. The episode in the police vehicles lasted for
approximately twenty minutes.
- The
four applicants were then taken to a police station and subsequently
to the Forensic Medicine Institute for a medical examination.
According to the medical reports drawn up that day, the four
applicants who had been hit by the police officers had a number of
injuries on their bodies, rendering them unable to work for periods
of between one and three days.
- Later
that same day the four applicants were released from police custody.
C. The Government’s submissions on the facts
- On
8 March 2005 the applicants took part in International Women’s
Day Celebrations in Malatya where three different groups of
demonstrators were carrying placards, flags and posters, and holding
demonstrations which hindered the flow of traffic.
- A
group of police officers tried to convince the group to disperse, and
requested them to hold their demonstrations without impeding the
circulation of the traffic. A police chief warned the participants
that no prior permission had been obtained for the gathering, but
told them that they could carry on with their demonstration on the
pavement and walk in an orderly manner without violating public
order. Nevertheless, the group, including the applicants, refused to
disperse and continued with their demonstration.
- The
police chief made several unsuccessful attempts to tell the
participants that the manner in which they were conducting their
demonstration was unlawful because they were impeding the flow of
traffic. The police chief also told the participants that they could
leave their placards – which were too large – and walk on
the pavement; the placards would be returned to them later.
- The
group insisted on blocking the street and continued with their
demonstration. In spite of the police officers’ warnings and
efforts, the group shouted slogans and continued to protest.
Meanwhile, ten to fifteen police officers formed a cordon around the
participants who had been giving orders to the rest of the
demonstrators. The demonstrators inside the police cordon continued
to protest, saying that they would not end the illegal demonstration
even if they were arrested.
- Police
officers then put a number of persons, including four of the
applicants, into the waiting police vehicles by force which could not
be considered disproportionate. They were taken to the Malatya Court
House. On the way to the court house the applicants insulted the
police officers present in the vehicle and tried to provoke them.
However, the police officers kept their calm. Female demonstrators
were accompanied by female police officers in the vehicle.
- The
remaining members of the group who had not been arrested continued
with their demonstration and read out their press release after
having complied with the police officers’ request to fold their
placards and walk on the pavement.
- The
Government submitted the video footage of the incident to the Court,
and argued that the footage supported their submissions summarised
above.
D. Documentary evidence submitted by the parties
- The
following information emerges from the documents submitted by the
parties.
1. Documents pertaining to the incident
- According
to a report signed by eighteen police officers, at 2.00 p.m. on
8 March 2005, police received intelligence that a number of
non-governmental organisations were planning to gather at the
junction of Milli Egemenlik Street with a view to marching from there
to the square outside the post office. The police put in place all
necessary security measures at the junction at 11.00 a.m. and the
demonstrators began arriving at midday.
- The
police officers unsuccessfully urged the demonstrators not to march
with their placards to the square, where a press release was
scheduled to be read out. When the demonstrators ignored the police
and started marching, thus blocking a main road, the police officers
had to use force to arrest the applicants – with the exception
of the second applicant, Ms Refika Meltem İspir – and five
other demonstrators because they resisted arrest and insulted the
police officers.
- According
to another police report drawn up on the same day, the arrested
persons behaved in a rowdy manner while they were being transported
to the court house in a vehicle. They also insulted the police
officers present in the vehicle by shouting things such as “Who
do you think you are? You have no right to behave like this. Shame on
you, are you going to tell your children that you are torturers?”.
- The
Government submitted to the Court the video footage of the incidents
recorded by police officers. However, the part where the police
officers used force and arrested the applicants does not feature in
the footage. The footage begins with the police officers trying to
persuade the demonstrators to leave their placards behind, and then
resumes with the demonstrators protesting against the use of force by
the police officers and asking for their arrested friends to be
released.
- It
can be seen from the footage that before they were arrested the
applicants drew the police officers’ attention to a circular
issued by the Ministry of the Interior on 11 June 2004. In the
circular, a copy of which was made available to the Court by the
applicants, the Ministry urges police officers to respect certain
rights and freedoms, including freedom of expression and assembly,
and reminds them that those rights and freedoms can only be
restricted in limited circumstances. In the circular, police officers
are also urged to show restraint when faced with demonstrations, and
to use their powers to promote the rights of civil society.
- On
the same day the four arrested applicants were examined by doctors at
the local branch of the Forensic Medicine Institute. The details of
their injuries, as noted in the medical reports, are as follows:
Ms
Nihal Pekaslan: four ecchymosed areas measuring between one and five
centimetres, and grazes on both forearms and on the left hand. Her
injuries prevented her from working for three days.
Ms
Kıvanç Pekaslan: an ecchymosed area measuring 2 x 2
centimetres on the inside of the right arm, which prevented her from
working for one day.
Mr
İbrahim Bozay: two ecchymosed areas, each measuring 1 x 1
centimetre, on the forehead, and two ecchymosed grazes on one of the
fingers of the right hand and on the right forearm, measuring 1 x 1
and 2 x 2 centimetres respectively. These injuries prevented Mr Bozay
from working for one day.
Ms
Leyla Bozay: Ms Bozay told the doctor that she had been hit on the
nape of the neck and that her hair had been pulled. The doctor
observed two ecchymosed areas measuring 1 x 1 and 2 x 1 centimetres
on the insides of both arms, which prevented her from working for one
day.
- On
10 March 2005, at 2.40 p.m., the first applicant, Ms Nihal Pekaslan,
was examined by another doctor at the Malatya State Hospital, who
observed two ecchymosed areas measuring 15 x 15 centimetres on her
arms, and various other ecchymosed areas on her knee and hand.
According to the doctor, the injuries had been caused some thirty-six
to forty-eight hours previously.
2. Documents pertaining to the investigation into the
allegations of ill-treatment
- On
8 March 2005 the second applicant, Ms Refika Meltem İspir,
lodged an official complaint with the prosecutor against the police
officers who, she alleged, had sprayed her and her daughter with tear
gas. On the same day Ms İspir orally informed the prosecutor
that she would recognise the police officer who had sprayed her and
her daughter with tear gas. When, some thirty-five days later, she
was asked by the investigating police officer whether she would be
able to identify the police officer responsible, she stated that she
had only seen him once and then only for a few seconds, but that had
they asked her immediately after the incident she would have been
able to recognise him.
- On
11 March 2005 the remaining four applicants lodged an official
complaint with the prosecutor against the police officers allegedly
responsible for the ill-treatment. They complained, inter
alia, that they had been beaten up
and assaulted while exercising their right to freedom of expression
and assembly. They also referred to Articles 3 and 10 of the
Convention.
- On
16 March 2005 a police chief in Malatya sent a verbatim transcription
of the video footage of the incidents to the Malatya prosecutor.
- Between
4 April 2005 and 3 May 2005 the Malatya prosecutor took statements
from eighteen police officers who had been on duty on the day of the
incidents. A police chief told the prosecutor that female
demonstrators had attacked the police and that the police had had to
use force in response. He maintained that the force used by the
police had been proportionate.
- Four
of the police officers told the prosecutor that the demonstrators had
blocked the street and that the police had had to arrest them. While
they were arresting the demonstrators there had been scuffles and the
demonstrators had attacked the police officers with sticks. The
police officers had had to use force, as a result of which the
demonstrators might have suffered minor injuries.
- The
remaining thirteen police officers’ statements concerned solely
the complaints made by the applicants regarding the alleged assaults
by male police officers on their way to the court house. These
officers denied that the demonstrators had been assaulted in the
police vehicles. They also added that the arrested persons had been
accompanied by female officers in the vehicles.
- On
18 April 2005 the prosecutor examined the video footage submitted to
his office by the police, and recorded his findings in a report. In
the opinion of the prosecutor, the demonstrators had tried to break
the police cordon and march. The police officers had not behaved in
an arbitrary manner and the use of force by them had not been
excessive.
- On
12 May 2005 the Malatya prosecutor decided not to prosecute the
police officers. In his decision the prosecutor stated that the
second applicant, Ms İspir, had been unable to recognise the
police officer who had sprayed her with tear gas. The prosecutor
stated that the applicants had gathered in the area without having
sought prior permission. In dispersing the unauthorised
demonstration, the police officers had been impelled to resort to the
use of force in order to apprehend the applicants because they had
resisted arrest and insulted them. In the opinion of the prosecutor,
other than the applicants’ unsubstantiated allegations, there
was no evidence justifying the prosecution of the police officers.
- The
applicants lodged an objection against the prosecutor’s
decision. They argued, in particular, that although they had not
resisted arrest, the police officers had proceeded to arrest them by
using force. The applicants also maintained that they had tried to
exercise their right to freedom of expression, which was guaranteed
by the Constitution as well as by Article 10 of the Convention.
They also pointed out that, according to the applicable legislation,
no prior permission was necessary to hold demonstrations. Moreover,
the police officers had acted contrary to the circular issued by the
Ministry of the Interior (see paragraph 26 above), and their actions
had also been in breach of Article 3 of the Convention.
- The
objection filed by the applicants was rejected by the Elazığ
Assize Court on 28 July 2005. That decision was communicated to the
applicants in September 2005.
3. Documents pertaining to the applicants’ trial
- On
8 March 2005 four of the applicants – that is, all the
applicants with the exception of the second applicant, Ms Refika
Meltem İspir – were questioned by the Malatya prosecutor
as suspects. They told the prosecutor that before they could even
begin their demonstration the police had arrested them without
warning and, in the course of doing so, had hit them. They denied
that they had insulted the police officers. Lawyers representing the
applicants told the prosecutor that the arrests had been arbitrary
and in breach of their clients’ fundamental rights and freedoms
under the Convention, including the prohibition of torture. The
lawyers added that their clients had been exercising their democratic
rights and had not committed any offences.
- On
the same day, the Malatya prosecutor filed an indictment with the
Malatya Criminal Court of First Instance and brought criminal
proceedings against the four applicants, as well as against the
remaining five persons who had been arrested together with the
applicants, for insulting the police officers and contravening the
Meetings and Demonstration Marches Act (Law no. 2911).
- On
2 June 2005 the Malatya Criminal Court of First Instance acquitted
the four applicants and the remaining defendants. It held that there
was no evidence to show that the four applicants had put up
resistance against the police officers.
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 3, 6 AND 13 OF THE
CONVENTION
- The
applicants complained that they had been
subjected to ill-treatment contrary to Article 3 of the Convention.
Under Articles 3, 6 and 13 of the Convention they also complained
that their allegations had not been examined adequately.
- The
Government contested the applicants’ complaints.
- The
Court considers that these complaints should be examined solely from
the standpoint of Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
- The
Government argued that the applicants had failed to exhaust the
domestic remedies available to them within the meaning of Article 35
§ 1 of the Convention because they had not brought an
administrative or a civil action for compensation.
- The Court reiterates that it has already examined and
rejected similar preliminary objections made in similar cases (see,
most recently, Gazioğlu and Others v. Turkey, no.
29835/05, §§ 29-30, 17 May 2011, and the
cases cited therein; see also Saçılık and
Others v. Turkey (partial just satisfaction), nos. 43044/05 and
45001/05, §§ 68-69, 5 July 2011).
It finds no particular circumstances in the instant case which would
require it to depart from its findings in the above-mentioned cases.
It therefore rejects the Government’s objections to the
admissibility of the complaint.
- As
for the complaints made by the second applicant Ms Refika Meltem
İspir, who argued that she had been sprayed with tear gas, the
Court observes that that applicant failed to submit to the Court any
evidence in support of her allegations. It follows, therefore, that
the complaints made by Ms İspir are manifestly ill-founded and
must be rejected in accordance with Article 35 § 3 of
the Convention.
- The
Court notes that the complaints made by the remaining four applicants
are not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that they are not
inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
- The
four applicants alleged that they had been
subjected to ill-treatment in breach of Article 3 of the Convention.
In support of their allegations they relied on the medical reports
described above which detail their injuries, and argued that the
force used by the police had been unwarranted and in breach of the
domestic legislation.
- The
four applicants submitted that throughout the incidents they had
behaved in accordance with the circular issued by the Ministry of the
Interior and had not behaved in a way which necessitated the use of
force against them. In support of this submission they argued that
the fact that they had been acquitted of the charges brought against
them proved that they had not put up resistance against the police
officers. The applicants also submitted that, even though they had
complied with the police officers’ request and accepted to walk
on the pavement without displaying their banners, the police officers
had proceeded to arrest them by forceful means.
- The
Government considered the applicants’ allegations of attacks by
the police officers without a prior warning to be baseless. In
their opinion the applicants had not submitted concrete evidence in
support of their allegations of ill-treatment. They also argued that
no struggle had taken place between the police and the demonstrators.
- According
to the Government, the video footage of the incident showed that the
police had done everything to persuade the applicants not to act in
breach of the applicable legislation. However, when the applicants
and other demonstrators ignored the warnings and impeded the traffic
circulation, the police officers had formed a cordon around them and
arrested them by using force which could not be considered excessive.
The force used by the police officers had been proportionate and the
injuries on the applicants’ bodies had been caused as a result
of their resistance. Since the force used by the police officers had
been proportionate to the aim of maintaining public order, there had
been no violation of Article 3 of the Convention.
- The
Government also argued that an effective investigation had been
carried out by the national authorities into the applicants’
allegations of ill-treatment.
- The
Court observes that the Government accepted that force had been used
by the police officers when arresting these four applicants, but
argued that the force used could not be considered to have been
excessive. They further submitted that since the use of force by the
police officers had been proportionate to the aim of maintaining
public order, there had been no violation of Article 3 of the
Convention.
- The
Court reiterates from the outset the absolute nature of the
prohibition of torture or inhuman or degrading treatment or
punishment. It is true that, according to the Court’s case-law,
Article 3 does not prohibit the use of force for effecting an
arrest. Nevertheless, such force may be used only if it is
indispensable and it must never be excessive (see Ivan Vasilev
v. Bulgaria, no. 48130/99, § 63, 12 April 2007, and the
cases cited therein).
- Furthermore, recourse to physical force which has not
been made strictly necessary by a person’s own conduct is in
principle an infringement of the right set forth in Article 3 of the
Convention. In this connection, the Court reiterates that the
undeniable difficulties inherent in the fight against crime cannot
justify placing limits on the protection to be afforded in respect of
the physical integrity of individuals (see Ribitsch v. Austria,
4 December 1995, § 38, Series A no. 336, and the case cited
therein).
- It
appears from the above-mentioned judgments that only in certain
well-defined circumstances can recourse to physical force by police
officers be deemed not to amount to ill-treatment. Thus, the Court
cannot accept the Government’s submissions that the use of
force by the police officers was proportionate to the aim of
maintaining public order (see paragraph 53 above). It is crucial
to stress that Article 3 of the Convention does not allow for a
balancing exercise to be performed between the physical integrity of
an individual and the aim of maintaining public order.
- While
the Government submitted, on the one hand, that no struggle had taken
place between the police and the demonstrators (see paragraph 52
above), they also stated: “when the applicants and other
demonstrators ignored the warnings and impeded the traffic
circulation, the police officers formed a cordon around them and
arrested them by using force” (see paragraph 53 above).
Having regard to the Government’s admission that the police
officers used force against the applicants, the Court considers that
the burden rests on the Government to demonstrate by convincing
argument that the use of force was rendered strictly necessary by
these applicants’ own behaviour and that the force used by the
police officers was not excessive.
- The
Court is faced with two conflicting conclusions reached by the
domestic authorities in relation to the Government’s submission
that the four applicants resisted arrest and that their resistance
justified the use of force against them. According to the
prosecutor’s decision of 12 May 2005, the
police officers were impelled to resort to the use of force in order
to apprehend the applicants because they had resisted arrest and
insulted them (see paragraph 36 above). According to the decision
of 2 June 2005 of the Malatya Criminal Court of First Instance,
however, there was no evidence to show that these four applicants had
put up resistance against the police officers (see paragraph 41
above).
- Nor
can the video footage of the incidents, which does not contain the
part during which the police officers arrested the applicants, lend
assistance to the Court in assessing whether the use of force was
indispensable, not excessive, and rendered strictly necessary by the
four applicants’ own behaviour. Concerning the
Government’s failure to submit to the Court an unedited copy of
the video footage, the Court stresses that it is of the utmost
importance for the effective operation of the system of individual
petition instituted under Article 34 that States should furnish all
necessary facilities to make possible a proper and effective
examination of applications (see Tanrıkulu v. Turkey
[GC], no. 23763/94, § 70, ECHR 1999-IV). It is inherent
in proceedings relating to cases of this nature, where an individual
applicant accuses State agents of violating his rights under the
Convention, that in certain instances the respondent State has access
to information capable of corroborating or refuting these
allegations. A failure on a Government’s part to submit such
information as is in their hands without a satisfactory explanation
may not only reflect negatively on the level of compliance by a
respondent State with its obligations under Article 38 of the
Convention, but may also give rise to the drawing of inferences as to
the well-foundedness of the allegations (see Timurtaş
v. Turkey, no. 23531/94, § 66, ECHR 2000 VI; see
also Rule 44A and C of Rules of Court). In the present case, and
having particular regard to the fact that the Government already bear
the burden of providing a plausible explanation for the four
applicants’ injuries (see paragraph 59 above), the Court does
not deem it necessary to examine whether the Government fell short of
their obligation under Article 38 of the Convention.
- Finally,
the Court notes that the prosecutor who decided not to prosecute the
police officers did not make any attempt to establish whether the
force used had been indispensable and not excessive.
- Instead, the rationale behind the prosecutor’s
decision to close the investigation appears to be that the applicants
had not obtained prior permission to hold the demonstrations. The
Court notes, however, that according to Article 34 of the
Constitution everyone has the right to hold unarmed and peaceful
meetings and demonstration marches without prior permission. It
further notes that the applicants unsuccessfully reminded the police
officers (see paragraph 8 above) and the Elazığ
Assize Court (see paragraph 37 above)
that no prior permission was necessary under Turkish law to
hold demonstrations.
- The
Court notes that, according to the report summarised above (see
paragraph 22 and 24), the police had been aware of the planned
demonstration and had taken the necessary measures at the scene of
the incident one hour before the demonstrators began to arrive. Thus,
it cannot be said that the police were called upon to react without
prior preparation (see Rehbock v. Slovenia, no. 29462/95,
§ 72, ECHR 2000-XII). They may therefore have been expected to
show a degree of patience and tolerance before attempting to disperse
a crowd which did not present a danger to public order and was not,
as established by the Malatya Criminal Court of First Instance,
engaging in acts of violence.
- In
the light of the above, in particular the prosecutor’s failure
to establish whether the force used had been indispensable and not
excessive and the Government’s failure to send the Court the
complete video footage of the incident, the Court considers that the
Government have failed to furnish convincing or credible facts which
would provide a basis to explain or justify the degree of force used
against the four applicants, whose injuries are corroborated by
medical reports. As a result, it concludes that the injuries
sustained by these applicants were the result of ill-treatment
contrary to Article 3 of the Convention, for which the State bears
responsibility.
- It
follows that there has been a violation of Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE
CONVENTION
- Lastly,
the applicants complained that their rights guaranteed by Articles 10
and 11 of the Convention had been subject to interference and
restriction without justification.
- The
Government contested that argument.
69. 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 [or] for the prevention of disorder ...”
A. Admissibility
- The
Government were of the opinion that the applicants had failed to
invoke their right to freedom of peaceful assembly before the
national courts.
- The
Court observes that the applicants expressly referred to their rights
under the Convention in various statements and petitions (see
paragraphs 30, 37 and 39 above). The Court thus
rejects the Government’s objection as to the admissibility of
this complaint.
- The
Court has already concluded that the applicant Refika Meltem İspir
failed to substantiate her allegation that she had been sprayed with
pepper gas (see paragraph 48). It also notes that, unlike the
remaining four applicants, Ms İspir was not arrested (see
paragraph 10 above). It follows that there has been no interference
with Ms İspir’s rights under Article 11 of the
Convention. Her complaints are therefore manifestly ill-founded and
must be rejected in accordance with Article 35 § 3 of
the Convention.
- The
Court notes that the complaints made by the remaining four applicants
are not manifestly ill-founded within the meaning of Article 35 § 3
(a) of the Convention. It further notes that they are not
inadmissible on any other grounds. They must therefore be declared
admissible.
B. Merits
1. Whether there was an interference with the
applicants’ exercise of their freedom of peaceful assembly
- The
Government maintained that there had been no interference with the
applicants’ rights under Article 11 of the Convention.
- The
Court considers that the intervention of the police officers, which
led to the subsequent arrests of the four applicants for
participating in the meeting, as well as the ill-treatment to which
they were subjected, constituted an interference with their rights
under Article 11 of the Convention.
2. Whether the interference was justified
- The
Government stated that the meeting in issue had been organised
unlawfully. They pointed out that the second paragraph of Article 11
of the Convention imposes limits on the right of peaceful assembly in
order to prevent disorder.
- The
Court reiterates that an interference will constitute a breach of
Article 11 of the Convention unless it is “prescribed by
law”, pursues one or more legitimate aim under paragraph 2 of
that provision and is “necessary in a democratic society”
for the achievement of those aims.
- In
this connection, it is noted that the interference in the present
case had a legal basis, namely sections 23 and 24 of the Meetings and
Demonstration Marches Act, and was thus “prescribed by law”
within the meaning of Article 11 § 2 of the Convention. As
regards a legitimate aim, the Government submitted that the
interference pursued, among others, the legitimate aim of preventing
public disorder, and the Court finds no reason to differ.
- Turning to the question of whether the interference
was “necessary in a democratic society”, the Court has
examined the applicants’ complaints in the light of the
fundamental principles underlying its judgments relating to Article
11 of the Convention (see, in particular, Oya Ataman v. Turkey,
no. 74552/01, §§ 35-44, ECHR 2006-XIII, and the
judgments cited therein; Bukta and Others v. Hungary, no.
25691/04, §§ 33-39, ECHR 2007-IX; and Éva Molnár
v. Hungary, no. 10346/05, §§ 23-46, 7 October 2008).
- In
the instant case the police officers arrested four of the applicants,
together with a number of other people taking part in the
demonstration, on the ground that they had breached the Meetings and
Demonstration Marches Act. However, having regard to the findings of
the Malatya Criminal Court of First Instance, the Court observes that
the applicants and the other demonstrators did not act in breach of
this law, contrary to the allegations of the Government (see
paragraph 76 above).
- The decision adopted by the Malatya Criminal Court of
First Instance also shows that the group neither presented a danger
to public order nor engaged in acts of violence. In this connection,
the Court reiterates that where demonstrators do not engage in acts
of violence 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 four applicants
were prosecuted – albeit subsequently acquitted – on
account of the mere fact of their participation in a peaceful
demonstration. It considers that a peaceful
demonstration should not, in principle, be made subject to the
threat of a penal sanction (see, mutatis mutandis, Akgöl
and Göl v. Turkey, nos. 28495/06 and 28516/06, § 43,
17 May 2011).
- In
the light of the foregoing, the Court considers that the intervention
of the police officers in the demonstration, coupled with the
subsequent prosecution of the applicants for their participation in a
peaceful demonstration, was disproportionate and not necessary for
preventing disorder within the meaning of the second paragraph of
Article 11 of the Convention.
- There
has accordingly been a violation of Article 11 of the Convention in
respect of the four applicants.
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
- In
respect of non-pecuniary damage, the first applicant, Nihal Pekaslan,
claimed 30,000 euros (EUR), and each of the remaining four applicants
claimed EUR 25,000.
- The
Government considered the claims to be unsubstantiated and excessive.
- The
Court considers that, in view of the violations found under Articles
3 and 11 of the Convention, the four applicants, namely Ms
Nihal Pekaslan, Ms Kıvanç Pekaslan, Mr İbrahim
Bozay and Ms Leyla Bozay, may be taken to have suffered a
certain amount of distress. Ruling on an equitable basis, the Court
awards each of these four applicants EUR 12,000 in respect of
non-pecuniary damage.
B. Costs and expenses
- The
applicant Ms Nihal Pekaslan claimed EUR 5,123.50 and the remaining
applicants claimed EUR 1,441 for the costs and
expenses incurred before the Court. In respect of their claims the
applicants submitted to the Court a time sheet showing the time spent
by their legal representatives on the case.
- The
Government considered the claims to be unsubstantiated.
- According
to the Court’s case-law, an applicant is entitled to the
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, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 2,500 jointly to the
four applicants to cover costs under all heads.
C. Default interest
- The
Court considers it appropriate that the 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 made by
the applicant Ms Refika Meltem İspir inadmissible and the
remainder of the applications admissible;
- Holds that there has been a violation of Article
3 of the Convention on account of the ill-treatment to which the
remaining four applicants, namely Ms Nihal
Pekaslan, Ms Kıvanç Pekaslan, Mr İbrahim
Bozay and Ms Leyla Bozay, were subjected by the police officers;
- Holds that there has been a violation of Article
11 of the Convention in respect of the four applicants on account of
the police officers’ intervention in the demonstration and
their arrests;
- Holds
(a) that
the respondent State is to pay the applicants,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2
of the Convention, the following amounts, to be converted into
Turkish lira at the rate applicable on the date of settlement:
(i) EUR
12,000 (twelve thousand euros), plus any tax that may be chargeable,
to each of the four applicants, namely Ms Nihal
Pekaslan, Ms Kıvanç Pekaslan, Mr İbrahim
Bozay and Ms Leyla Bozay, in respect of non-pecuniary damage;
(ii) EUR
2,500 (two thousand five hundred euros), jointly to the four
applicants, plus any tax that may be chargeable to them, in respect
of costs and expenses;
(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 20 March 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise
Tulkens Registrar President
