JUDGMENT ON OSMAN ERBİL
The Second Section of the Constitutional Court unanimously held in its judgment on Osman Erbil (App. No: 2013/2394) published in the Official Gazette dated 25/3/2015, that the decision of sentence and postponement of announcing the judgement rendered concerning the applicant due to his participation in a peaceful demonstration violated the right to organise meetings and demonstrations.
The applicant wanted to make a press statement with a group of twenty-four persons in front of the Embassy of the United States of America (USA) on 24/8/2011 with the aim of protesting the custody of certain heads of Labourer Party and Aydınlık Journal.
The police warned the group that an illegal demonstration was being held and they should disband, otherwise legal action would be taken against them. In reply, some persons from the group said “We can protest wherever we like. The law grants us the right to protest wherever we want without taking permission in advance, therefore we will continue our protest here” and the persons in the group did not willingly leave there.
Twenty-three persons including the applicant were taken into custody following the intervention of the police and the applicant was released by Public Prosecutor’s Office the following day.
A public case was filed against the applicant and other persons with the indictment of Ankara Chief Public Prosecutor’s Office dated 22/9/2011 within the scope of the Law on Meetings and Demonstrations numbered 2911.
23rd Criminal Court of First Instance of Ankara sentenced the applicant to five months’ imprisonment in accordance with paragraph one of Article 32 of the Law numbered 2911 in the judgement dated 11/1/2012 and rendered for the postponement of announcing the judgement.
The applicant alleged that their conduct of a peaceful meeting was prevented by noting that the police intervened and disbanded the group and took them into custody as they were about to make a press statement in front of the US Embassy with the aim of protesting the custody of heads of Aydınlık Journal and Labourer Party, of which he was a member, he was sentenced to imprisonment as a result of the public case filed against him; however, a decision of postponement of announcing the judgement was rendered, the group gathered on peaceful purposes, no assault against the police took place.
The assessment of the Court
According to the Constitutional Court, the right to organise meetings and demonstrations provided in Article 34 of the Constitution aims to guarantee the possibility of individuals to assemble in order to jointly defend their common opinions and announce them to others. Therefore, this right is a special form of freedom of expression provided in Articles 25 and 26 of the Constitution. The significance of freedom of expression in a democratic and pluralist society is also valid for the right to organise meetings and demonstrations. The right to organise meetings and demonstrations guarantees the emergence, protection and dissemination of different opinions, which is essential in the development of pluralist democracies.
On the other hand; pluralism, tolerance and respect for opinions and beliefs of others are among the indispensable features of a democratic society. The superiority of the opinion of majority in all cases cannot be argued in pluralist democracies; besides, safeguarding minority or opposing opinions and guaranteeing their expression is an indicator of respect for democratic values. Guaranteeing the opinions which are in the minority by safeguarding them even in case of their being provocative or disturbing in the eyes of majority is a must for pluralism, open-mindedness, tolerance and democratic society.
The right to organise meetings and demonstrations and freedom of expression are among the most fundamental values of a democratic society. The ability to resolve problems in an open platform for discussion lies at the core of democracy. Radical preventive measures for eliminating freedom of assembly and expression except incitement to violence harm democracy, even in cases when officials deem the expressions and perspectives used in protests unacceptable or when protests are illegal. The opportunity of self-expression of political opinions, which object to the current order and whose realisation by peaceful methods is defended, through freedom of assembly and by other legal means should be granted in a democratic society based upon the rule of law.
Article 34 of the Constitution guarantees the right to organise meetings and demonstrations with a view to putting forward opinions in an unarmed way without any assaults; in other words, in a peaceful manner. This right, which is exercised collectively, enables persons wishing to express their opinions to state thoughts by methods excluding violence. Demonstrations participated or organised by persons intending to use violence are out of the scope of peaceful assembly concept. Within this context, the aim of the right to assembly is to safeguard the rights of individuals who are not involved in violence and who put forth their opinions in a peaceful manner. Apart from this, the purpose of a meeting or demonstration is of no importance.
The right of everyone to organise peaceful meetings and demonstrations “without taking permission in advance” is guaranteed in Article 34 of the Constitution. Within this framework, notification procedure was adopted for meetings and demonstrations in the Law numbered 2911. Provided that envisaging permit or notification procedure for meetings and demonstrations targets the aim of enabling officials to take reasonable and appropriate measures in order to ensure the proper conduct of all kinds of meetings, marches or other demonstrations, it does not harm the substance of the right.
In the incident constituting the subject of application, the group including the applicant gathered in front of the US Embassy located in an area one kilometre away from Turkish Grand National Assembly (TGNA) without making any notifications forty-eight hours in advance under Article 10 of the Law numbered 2911 and in defiance of Article 22 of the same Law.
The practice of such a security zone, which could be deemed reasonable for ensuring the order of functioning and security of TGNA, should be assessed as regards its proportionality for the realisation of this aim in terms of each concrete case. Within this context with a formal approach, intervention in a demonstration or meeting cannot be deemed justified by itself on account of its contrariness to law. Reasons for intervention should be “relevant and sufficient” within the framework of concrete conditions of the case.
It cannot be said that as a rule, being under the threat of penal sanction due to a peaceful demonstration redresses the balance between the necessary measures in order to realise legitimate aims and the right to peaceful assembly.
The intervention, which is ending the press statement participated by the applicant on the grounds that it is contrary to law and sentencing him to imprisonment due to this act, is not “necessary in a democratic society”and “proportional” despite the decision of postponement of announcing the judgement. Therefore, the right to organise meetings and demonstrations guaranteed in Article 34 of the Constitution was violated.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.