JUDGMENT ON ALİ RIZA ÖZER AND OTHERS
The General Assembly of the Constitutional Court held in its judgment on Ali Rıza Özer and Others (App. No: 2013/3924) that Articles 17/3. and 34. of the Constitution were violated.
The Constitutional Court emphasized that the right to peaceful assembly and demonstration guarantees the emergence, preservation, and dissemination of different thoughts, which are essential in the development of pluralistic democracies. In the judgment, it is stated that, except in situations of promoting violence and destroying the principles of democracy, the measures to prevent the exercise of the freedom of assembly and expression might harm democracy even if such demonstrations were not authorized or the statements expressed during which may be considered unacceptable. In this context, the Court reached the conclusion that the police intervention against the applicants during the demonstrations was neither necessary nor proportional in a democratic society.
Further, the Court considered that the disproportionate intervention by security forces during the meetings and demonstrations and the authorities’ failure to effectively investigate the relevant complaints constituted a violation of the ban on ill treatment.
The applicants are Özcan Çetin, Orhan Bayram, Veli İmrak, Tunay Özaydın and Deniz Doğan. The application is concerned with the allegations of violation of the ban on ill treatment, freedom of expression, and the right to peaceful assembly and demonstration.
Applicants Özcan Çetin, Orhan Bayram, Veli İmrak, Tunay Özaydın, Deniz Doğan (teachers) and Ali Rıza Özer (an education inspector) are members of Education and Science Labourer’s Union Izmir Branch, an association of public servants working in the education sector.
Upon the start of the debate in Turkish Grand National Assembly regarding “The Bill Amending the Elementary School and Education Law and Various Other Laws”, which proposes changes in educational system and known to the public as “4+4+4 bill”, the applicants wanted to join the demonstration that was set to take place in Ankara on 28&29 March 2012 in order to express their objections to the bill. However, they were forcefully prevented by security forces from doing so. Afterwards, in order to protest this prevention and the above mentioned bill, a group including the applicants held press release and demonstration in Izmir on 27&28 March 2012. The applicants have been injured during the police intervention against the demonstration. Chief Public Prosecutor’s Office of Izmir considered the intervention of the security forces within the limits of legal use of force and found no ground for prosecuting any police officer.
On the other hand, some of the applicants were prosecuted for allegedly violating the Assemblies and Marches Act no. 2911 and resisting/obstructing public officers, and they were acquitted on both counts.
The applicants petitioned violations of the freedom of expression, the right to peaceful assembly and demonstration, and the ban of ill treatment. They allege that these violations took place upon them being prevented from joining the press release and demonstration in Ankara and due to disproportionate use of force by police during the demonstration in Izmir.
The assessment of the Court
With Regard to Ban on Ill Treatment
Examining the ill treatment allegations and the substantive and procedural aspects of the ban on the basis of assembly and demonstration marches, the Court emphasized that police may use force during non-peaceful public protests only when it is inevitable and with the condition of not being excessive, and that, where an individual’s actions and attitudes do not absolutely necessitate it, the use of force may violate the substantive aspect of the ban on ill treatment. The court also noted that the use of pepper spray alone will not constitute a violation of the ban on ill treatment.
In its assessment regarding the procedural aspect of the ban on ill treatment, the Court stated that criminal investigations should be conducted in an efficient and sufficient manner to yield to ascertainment and punishment of those who are responsible, and that, in order to investigate in an efficient and sufficient manner, the responsible authorities should commence own motion investigations and gather all evidence necessary to find out the facts and determine those who are responsible.
In this context, the court held by majority that the ban on ill treatment which is guaranteed in the third paragraph of Article 17 of the Constitution is violated substantively and procedurally for applicant Ali Riza Özer and held unanimously that the ban on ill treatment is violated neither substantively nor procedurally for applicants Orhan Bayram, Veli İmrak ve Özcan Çetin.
With Regard to Right to Hold Meeting and Demonstration March
The Constitutional Court pointed out that, in a democratic society based on the rule of law, the political ideas that object to the ongoing system and rest upon peaceful methods should be provided with the opportunity to be expressed through freedom of assembly and other legal means. In addition, emphasizing that the Article 34. of the Constitution guarantees the right to assembly and demonstration so that ideas be manifested peacefully (without violence and hostility), the purpose of the freedom of assembly is to protect the rights of individuals who express their ideas peacefully and do not involve in violence. In the judgment, the court also stressed that it is of great importance that, in public protests where pepper spray is being used, individuals who are more susceptible to pepper spray due to age, pregnancy, and chronic diseases should be given fair warning prior to the use of spray.
Examining the allegations on the basis of two separate incidents, the Constitutional Court held by majority that, concerning the first protest, all applicants’ right to assembly and demonstration that is guaranteed under the Article 34 of the Constitution is violated. With regard to the second protest, the court unanimously held that the right to assembly and demonstration was not violated for Orhan Bayram on the ground that the interference against his violent actions was proportionate, and the court held by majority that the right was violated for all other applicants.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.