Press Release No: Plenary Assembly 3/18
05.01.2018

PRESS RELEASE CONCERNING THE DECISION ON CERTAIN PROVISIONS OF THE LAW ON MEETINGS AND DEMONSTRATIONS

The Constitutional Court in its plenary sitting on 28/9/2017 held in its judgment on the Law on Meetings and Demonstrations numbered 2911 (Case Number: 2014/101) to dismiss the requests for annulment regarding

1. the clause, included in the first sentence of the second paragraph of Article 6, “…determined by the supreme civilian authority of the locality” prescribing that the site  and route of meetings and demonstrations in the cities and counties shall be determined by the supreme civilian authority of the locality,

2. the clause, included in the second sentence of Article 6, “…the ones having a group in the Turkish Grand National Assembly…” prescribing that while determining the site and route of meetings and demonstrations, the supreme civilian authority shall take the opinions of the city and county representatives of the political parties having a group in the TGNA,

3. the provision, included in the first paragraph of Article 10, subjecting the possibility to hold meetings to the condition that public notice be provided forty-eight hours before the meeting,

4. the rule, included in the second paragraph of Article 11, prescribing that during meetings and demonstrations, the audio-video recordings of the participants and speakers can be openly made by the law-enforcement officers.

On the other hand, the Constitutional Court annulled:

1. the clause, included in the first sentence of the second paragraph of Article 6, “…and in a way as not to make daily lives of citizens difficult…” prescribing that while determining the site and route of the meeting and demonstration, the supreme civilian authority of the locality shall take into account the criterion “not to make daily lives of citizens difficult”

2. the clause, included in the second paragraph of Article 7, “…in a way as to scatter before the sun sets…” banning the demonstrators from continuing their meetings and demonstrations in the open areas after the sun sets,

3. the clause, included in the first paragraph of Article 22 of the Law, “Highways…” banning people from holding meetings on highways.

A. Determination of the Site and Route of the Meeting and the Demonstration by the Supreme Civilian Authority

Grounds for the requests for annulment

In the petition, it is maintained in brief that the contested rule vests the supreme civilian authority with wide discretion in determination of the site and route of meetings and demonstrations, that the right to organize a meeting and demonstration also involves determination of the area where the demonstration shall take place, that determination of such issues by the civilian authority destroys the essence of the right, that this discretion does not respond to a pressing social need and is not necessary in a democratic social order. It is accordingly maintained that the rule is contrary to Articles 2, 5, 11, 12, 13, 26, 34 and 90 of the Constitution.

The Rule requested to be annulled

The rule prescribes that the site and route of a meeting and demonstration shall be determined by the supreme civilian authority of the locality.

The Court’s Assessment

The assessments of the Constitutional Court regarding these allegations are briefly as follows:

When the purpose and nature of the right to organize a meeting and demonstration is considered, it is understood that this right also includes the freedom to choose the site where the meeting or the demonstration shall take place. Since the purpose of organizing a meeting and demonstration is to express an idea, to defend the common interests, to form a public opinion within the framework of certain ideas and thoughts and to influence the political decision-making bodies, the site where the meeting and demonstration is organized is of importance in terms of the expressed thought being available to reach the addressees and to have an influence. For this reason, the choice of the site where the meeting and demonstration shall take place, as a rule, ought to be left to the discretion of the organizers. In this respect, the regulations restricting the freedom to determine the site where the individuals shall organize the meeting and the demonstration interfere with this right.

It is obvious that limitation of the locality of the areas where the meeting and demonstration can be organized to the site and route determined by the supreme civilian authority interferes with the right to choose the site where the individuals shall hold the meeting or demonstration.

This right, not being unlimited in spite of the fact that it is important in terms of the democratic society, can be subjected to some restrictions provided that it is in accordance with the guarantees provided in Article 13 of the Constitution.

The Constitution makes it possible for the legislator to restrict this right in respect of determination of the sites where the meeting and demonstration can be held, with a view to protecting the public order.

Besides, the right to organize a meeting and demonstration is an indispensable element of the democratic society. To be able to interfere with this right in a democratic society only depends on pressing reasons.

Considering the measures required to be taken for meetings and demonstrations depending on factors such as place, purpose, or the number of participants, it cannot be concluded that it is not necessary in a democratic society to vest the supreme civilian authority with the power to determine the sites and routes where the meetings and demonstrations can be held.

In accordance with the second paragraph of Article 6 of the Law, it is ensured that political parties, trade unions, professional organizations and the relevant municipalities also take part in the decision-making process regarding the exercise of this power.

On the other hand, it is natural that the civilian authority should exercise this power in such a manner that he/she shall respect the organizers’ freedom to choose the site. It is a requirement of the principle of proportionality that the delicate balance be struck between the individual interests of the individuals wanting hold a meeting and demonstration in having the freedom to choose the site and the public interest in protection of the public order and of the rights of the third persons.

Finally, it is obvious that the discretion of the civilian authority is not unlimited, and the decision he/she renders is to be reviewed by the authorities of administrative justice and thereby can be annulled if necessary. Thus, interference with the right to hold a meeting and demonstration by vesting the civilian authority with the power to determine the site and route of the meeting and demonstration cannot be considered as excessive. 

For the reasons mentioned above, the Constitutional Court has found that the rule is not contrary to Articles 13, 26 and 34 of the Constitution and dismissed the request for annulment.

B. The Criterion of not Making Daily Lives of Citizens Difficult in Determination of the Site and Route of the Meeting and Demonstration

Grounds for the request for annulment

It is maintained in the petition in brief that meetings and demonstrations have influence on daily lives of citizens to a certain extent, which stems from the nature of such events, therefore, the restriction does not respond to a “pressing social need”, and the rule is contrary to Articles 2, 5, 26 and 34 of the Constitution.

The Rule requested to be annulled

The rule prescribes that the supreme civilian authority of the locality shall also observe the criterion of “not to make daily lives of citizens difficult” while determining the site and route of the meeting and demonstration.

The Court’s Assessment

The assessments of the Constitutional Court regarding this rule are briefly as follows:

Determination of the site and route of the meeting and demonstration in a way as not to make daily lives of citizens difficult shall lead to limitation of the sites where the meeting and the demonstration can be organized; and thus, it interferes with this right.

It is understood that the rule has aimed at protection of the rights and freedoms of others.

The fact that organization of a meeting and demonstration in a public area affects the rights and freedoms of the persons making use of this area for different reasons does not require that holding of a meeting and demonstration be banned in that area. A proper solution ensuring that both sides enjoy their rights should be found.

The right to organize a meeting and demonstration can be interfered in a democratic society only if there are pressing reasons. It is required that daily life be difficult “to an excessive and intolerable extent” so that closing of a site to the meetings and demonstrations could be justified as a result of the fact that organization of a meeting and demonstration at a site renders a citizen’s daily life difficult. As for the contested provision, no criterion has been prescribed as to what extent daily life is affected. The rule, as it is, also provides that the sites of the meetings or demonstration may be restricted depending on  a number of difficulties which should be welcomed in a democratic society. Therefore, the interference with the right to organize a meeting and demonstration from being necessary and renders it unmeasured.

For the reasons mentioned above, the Constitutional Court has found that the rule is contrary to Articles 13, 26 and 34 of the Constitution and annulled it.

C. Receiving Opinions only from Political Parties having a Group in TGNA

Grounds for the request for annulment

It is maintained in the petition in brief that the rule is contrary to Articles 2, 10 and 68 of the Constitution, stating that excluding political parties that does not have a group in the Parliament is not compatible with the principle of the rule of law and damages the principle of equality.

The Rule requested to be annulled

The rule prescribes that the supreme civilian authority shall ask for the opinions of the city and county representatives of the political parties only having a group in the TGNA for determining the sites and routes of the meetings and demonstrations in the cities and counties.

 The Court’s Assessment

The assessments of the Constitutional Court regarding this rule are briefly as follows:

When the difficulties concerning receiving the opinions of all the political parties are considered, it is within the discretion of the legislator that the political parties whose opinions shall be asked for be limited to the ones having a group in the TGNA. For this reason, the rule is not contrary to the principle of the rule of law.

In addition, it is obvious that the representation ratio of the parties having a group in the TGNA and the other parties is not the same. The legislator, relying on this objective criterion, subjects the political parties having a group in the TGNA to different rules, which does not damage the principle of equality. In this context, the contested rule prescribing that for determining the sites and routes of a meeting and demonstration in the cities and counties, the supreme civilian authority shall ask for the opinions of the city and county representatives of the political parties having a group in the TGNA, is contrary to the principle of equality.

For the reasons mentioned above, the Constitutional Court has found that the rule is not contrary to Articles 2 and 10 of the Constitution and  dismissed the request for annulment.

D. The Obligation concerning that the Meetings and Demonstrations shall be Dispersed after Sun Sets

Grounds for Objection

It is maintained in the decision regarding the application in brief that the rule is contrary to Articles 2, 5, 11, 12, 13, 26, 34 and 90 of the Constitution, stating that there is no point in making a distinction between day and night when today’s conditions and technological opportunities are considered, that illegal limitations cannot be imposed on the right of assembly in terms of time (ratione temporis), that the meetings held at night should also be maintained within the scope of “freedom of peaceful assembly” .

The Rule as the subject matter of the objection

The rule bans continuation of the meetings and demonstrations in the open areas after the sunset.

The Court’s Assessment

The assessments of the Constitutional Court regarding this rule are briefly as follows:

It is obvious that limitation of the duration of the meetings and demonstrations in the open areas with the sunset is an interference with the right to organize a meeting and demonstration.

 It is probable that holding a meeting and demonstration at night will disturb people taking a rest at home in peace and quietude. This risk can increase further especially later at night. Likewise, some difficulties might be experienced in carrying out the positive duties of the state within the scope of the right to organize a meeting and demonstration during night hours and, therefore, in taking the necessary measures for maintaining the public order.  Thus, limitation of the right to organize a meeting and demonstration may be necessary to prevent the disturbance of other people and public order.

However, it cannot be said that dispersion of the meetings not constituting a threat to the public order and maintaining a peaceful nature just because they extend to the period after the sunset is necessary in a democratic society.

When the nature of the right to organize a meeting and demonstration and its significance in respect of the democratic society are considered, putting a ban categorically on holding a meeting and demonstration after it gets dark can lead to the conclusion that the right is excessively limited. Without an evaluation on whether or not a ban is necessary after assessing if continuation of a meeting after the sunset affects the public order and damages the rights and freedoms of others, in other words, prescribing an absolute ban on the meetings and demonstration after sunset constitutes a disproportionate interference with the right to organize a meeting and demonstration. It should be expressed that a categorical ban in this way becomes more problematic in terms of evening hours when people relatively continue their daily activities.

In this regard, as prescribed in the contested provision, the interference with the right to organize a meeting and demonstration is not considered to be necessary and proportionate in a democratic society.

For the reasons mentioned above, the Constitutional Court has found that the rule is contrary to Articles 13, 26 and 34 of the Constitution and annulled it.

E. The Condition of Public Notice forty-eight Hours in Advance

Grounds for Objection

It is maintained in the petition in brief that the rules are contrary to Articles 2, 5, 11, 12, 13, 26, 34 and 90 of the Constitution, stating that the form requirements regarding the notice render the exercise of the right difficult and indeed change the condition of notice into permission, that the unexpected and instant meetings and demonstrations held without a notice become illegal, and that the spontaneous reactions should be securely maintained within the scope of the freedom of assembly.

The Rule as the subject matter of the objection

To hold a meeting is subjected to the notice procedure by Article 10 of the Law. In the first paragraph of the Article, in order for a meeting to be held, it is established that a notice signed by all the members of the organization committee shall be submitted at least forty-eight hours before the meeting, during the working hours, to the office of the governor or of the district governor; and in the second paragraph, it is stated that the purpose, the site, day, beginning and ending time of the meeting, the identities, professions, places of residence and if available places of work of the chairmen and members of the organization committee shall be indicated in the notice and the documents indicated in the by-law shall be attached to the notice.

The Court’s Assessment

The assessments of the Constitutional Court regarding this rule are briefly as follows:

It is obvious that subjecting the meetings and demonstrations to the condition of notice is an interference with this right. This interference should not be contrary to the criteria specified in Article 13 of the Constitution in order to be in accordance with the Constitution. One of the criteria specified in Article 13 of the Constitution is the criterion of “not being contrary to the wording of the Constitution.”  

By stating in the first paragraph of Article 34 of the Constitution that “Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission”, it is clearly provided that organization of a meeting and demonstration cannot be subjected to the condition of getting permission.

However, no rule providing that a meeting and demonstration cannot be subjected to the condition of notice exists in the Constitution. In the third paragraph of Article 34 of the Constitution, it is stated that the manner, the conditions and procedures with regard to the exercise of the right to organize a meeting and demonstration shall be prescribed by law. Accordingly, it is possible for the legislator to prescribe the condition of notice pursuant to this provision. Thus, it is concluded that imposing the condition of notice is not contrary to the Constitution.

The purpose of the notice is to determine whether or not the meeting and demonstration involve any element which is contrary to the law and to provide the competent administration with the opportunity so that the necessary measures including security could be taken, as required under the positive obligations of the state. It is realized that this purpose is for ensuring the public order and therefore, by imposing the condition of notice, the interference with the right to organize a meeting and demonstration is based on the reason “protection of the public order” provided for in the second paragraph of Article 34 of the Constitution.

It is prescribed that the notice shall be submitted at least forty-eight hours before the meeting to the competent authority within the working hours. The reason for obligation to make the notice before the date of the meeting or demonstration arises from the need for the measures to be taken by the public authorities. However, this period should be reasonable and be determined in such a way as not to render a meeting or a demonstration impossible or meaningless in terms of individuals.

When the nature of the measures to be taken by the public authorities is considered, it is concluded that the forty-eight period is reasonable and the balance between the public interest and the individual interest is struck. In addition, it is out of the question that the condition of notice subjects a meeting or a demonstration to implicit permission, or makes it difficult, or renders it infeasible, since making a notice suffices to hold a meeting or demonstration without the approval of the administration (as long as a ban or adjournment decision is not rendered by the administration).

In this regard, the interference with the right to organize a meeting and demonstration by imposing a notice in advance is proportionate.

For the reasons mentioned above, the Constitutional Court has found that the rules are not contrary to Articles 13, 26 and 34 of the Constitution and dismissed the request.

F. Audio Video Recordings of the Participants and Speakers during Meetings and Demonstrations may be Openly Made by Law-enforcement Officers

Grounds for the request for annulment

It is maintained in the petition in brief that the rule is contrary to Articles 2, 5, 26 and 34 of the Constitution, stating that the audio video recordings of the participants and speakers during meetings and demonstrations openly made by the law-enforcement officers might have a dissuasive effect on the exercise of the right to organize a meeting and demonstration, and render the exercise of this right difficult, and that they constitute an excessive interference with the right to organize a meeting and demonstration.

The Rule requested to be annulled

The rule prescribes that the audio video recordings of the participants and speakers during meetings and demonstrations can be openly made by the law-enforcement officers, and that such recordings or images cannot be used for any purposes other than detection of the suspects or criminal evidence.

The Court’s Assessment

The assessments of the Constitutional Court regarding this rule are briefly as follows:

The regulations resulting in in dissuasion of individuals from participating in meetings and demonstrations, which constitutes an indispensable part of the democratic society, constitute an interference with the right to organize a meeting and demonstration. The audio video recordings of the participants and speakers during meetings and demonstrations made by the law-enforcement officers might have a dissuasive effect on participation in the meetings and the demonstrations to a certain extent. For this reason, prescribing that the audio video recordings of the participants and speakers during meetings and demonstrations made by the law-enforcement officers constitutes an interference with the right to organize a meeting and demonstration.

However, this interference is based on the purpose of crime prevention, complying with the reasons set forth in Article 34 of the Constitution.

A peaceful meeting held in accordance with the law might turn into an illegal event after the meeting starts or some actions constituting criminal offence may be committed during the meeting. It is in some cases impossible to detect who has carried out the actions constituting criminal offence due to the fact that the meetings or demonstrations are held by crowded groups. In such cases, responsible persons may go undetected and unpunished. It is clear that the audio video recordings of the participants and speakers during meetings and demonstrations being made by the law-enforcement officers shall be instrumental in overcoming such difficulties of proof and ensure the possibility of punishment of suspects.

The audio video recordings of the participants and speakers during meetings and demonstrations made by the law-enforcement officers have a dissuasive effect on some individuals with regard to participation in a meeting and demonstration. In spite of that, this issue remains rather limited and does not reach to such an extent that overcomes the necessity of having criminal evidence and punishment of suspects. In addition, it is prescribed in the rule that such recordings or images cannot be used for any purposes other than detection of suspects or as criminal evidence. In this regard, it cannot be mentioned that the interference prescribed by the rule is not necessary in a democratic society, and, therefore, it is considered disproportionate.

For the reasons mentioned above, the Constitutional Court has found that the rule is not contrary to Articles 13, 26 and 34 of the Constitution and dismissed the request for annulment.

G. The Ban on Holding a Meeting on Highways

Grounds for Objection

It is maintained in the decision regarding the application in brief that the rule is contrary to Articles 2, 5, 11, 12, 13, 26, 34 and 90 of the Constitution, stating that the purpose of holding a meeting and demonstration is to ensure that some claims are shared with the public in the democratic sense, that the constitutional right will in fact be non-exercisable in the event that the meeting or demonstration is held at the sites where it is not possible for the public to be aware of such events.

The Rule as the subject matter of the objection

The assessments of the Constitutional Court regarding this rule are briefly as follows:

As putting a ban on determination of the highways as the site of a meeting limits the sites where the meeting shall take place, it will be an interference with the right to organize a meeting and demonstration.

Holding a meeting on the highways might damage people’s right to transportation. For this reason, by putting a ban on determination of the highways as the site of a meeting, it is realized that the interference with the right is legitimate and based on the purpose of protection of the rights and freedoms of others.

In case there is a conflict between fundamental rights and freedoms, enjoyment of both rights must be secured through striking a reasonable balance among them. The fact that holding a meeting on highways would paralyze the traffic and make daily life difficult “to an excessive and intolerable extent” justifies closing of highways to meetings and demonstrations.. However, the contested rule prescribes an absolute ban without making any evaluation on to what extent daily life is affected. Therefore, it renders the interference with the right to organize a meeting and demonstration excessive and unnecessary in a democratic society.

For the reasons mentioned above, the Constitutional Court has found that the rule is contrary to Articles 13, 26 and 34 of the Constitution and annulled the rule.  

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

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