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SECOND
SECTION
CASE OF UZUNGET AND OTHERS v. TURKEY
(Application
no. 21831/03)
JUDGMENT
STRASBOURG
13 October
2009
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 Uzunget and Others
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 22 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21831/03) 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 fourteen Turkish nationals, Mr Sinan Cem
Uzunget, Mr Alaattin Uğraş, Mr Emre Altun, Mr Hikmet
Gökçe, Mr Rıza Altuntov, Mr Kazım Savcı,
Mr İsmail Temizyürek, Ms Nazime Karakaya, Ms Zeynep
Şeker, Ms Leyla Mahi Uğraş, Ms Songül Ergül,
Ms Esma Seviş, Ms Fatma Özcelik and Mr Hüseyin
Bolat (“the applicants”), on 19 June 2003.
- The
applicants were represented by Ms E. Olkun, Mr R. Karaman and
Mr Kenan Arslan, lawyers practising in Ankara. The Turkish
Government (“the Government”) were represented by their
Agent.
- The
applicants complained of an unjustified interference with their right
to freedom of assembly and unfairness of the criminal proceedings
against them in violation of Articles 6, 9, 10 and 11 of the
Convention.
- On
16 April 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1975, 1964, 1982, 1976, 1983, 1978, 1961,
1947, 1955, 1975, 1979, 1953, 1952 and 1976 respectively and live in
Ankara.
- On
31 July 2000 the applicants, together with several other persons,
gathered in a public park in Ankara in protest against F-type prisons
and the events which had occurred in Bergama Prison (violent clashes
had taken place between the detainees and security forces on 27 July
2000). The participants wanted to read out a press statement in order
to express their concerns about F-type prisons and the events in
Bergama Prison. Police officers warned the crowd over a megaphone
that the demonstration was illegal under Law no. 2911 on Meetings and
Demonstration Marches. The group ignored the police warning. The
police officers then arrested twenty-four persons, including the
applicants, and took them into custody. It appears from the newspaper
articles submitted by the applicants that the police officers used
force in order to disperse the protesters. As a result, some of the
protestors were injured and a number of them were arrested by the
police officers.
- According
to the arrest report, drawn up and signed by the police officers, the
applicants were demonstrating with protest banners in their hands.
After having warned them to desist, the police arrested the
protesters who continued demonstrating. It was also noted in the
arrest report that three police officers, who had been injured during
the clash with the demonstrators at the time of the arrest, had had
to be taken to hospital. The medical reports stated that the police
officers were unfit for work for two days.
- On 31 August 2000 the Ankara Public Prosecutor filed an
indictment with the Ankara Criminal Court of First Instance against
the applicants and nine others, charging them with having taken part
in a demonstration in a public place, without the permission of the
authorities, contrary to Law no. 2911.
- The
applicants alleged that the police officers had been armed during the
hearings before the trial court and had verbally harassed the defence
lawyers. Moreover, the police officers had obtained a copy of the
reports and statements in the case file even though they were not a
party to the proceedings. The applicants' request to include these
facts in the record of the hearings was dismissed.
- On
5 July 2001 the Ankara Criminal Court of First Instance acquitted
some of the accused but convicted the applicants on the basis of the
evidence given by them and by witnesses. The court found that the
applicants had ignored the police warning that their meeting was
illegal and that they had to disperse. The police had had to use
force in order to arrest the applicants. Furthermore, having examined
the applicants' defence submissions, the court considered that the
applicants had indirectly confessed to the crime (tevil yollu
ikrar) by admitting that they had gathered in the park in order
to protest against F-type prisons and the events in Bergama Prison.
It then sentenced Rıza Altuntov to a fine, taking into account
the fact that he was a minor at the time of the incident (seventeen
and a half years old), whereas it sentenced the other applicants to
one year and three months' imprisonment. It decided to suspend
enforcement of the applicants' sentence, under section 6 of Law no.
667, with the exception of Alaattin Uğraş, Sinan Cem
Uzunget and İsmail Temizyürek.
- On
7 March 2002 the applicants appealed to the Court of Cassation
against the judgment of the first-instance court. The written opinion
of the Chief Public Prosecutor at the Court of Cassation was not
transmitted to the applicants.
- On
19 December 2002 the Court of Cassation upheld the decision of the
first-instance court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section 6 of Law no. 647 on the Execution of Sentences
reads as follows:
“Anyone who has never been sentenced ... to a
penalty other than a fine and is sentenced to ... a fine ... and/or a
[maximum] term of one year's imprisonment may have his [her] sentence
suspended if the court is satisfied that [the offender], having
regard to his [her] criminal record and criminal tendencies, will not
reoffend if [the] sentence is thus suspended ...”
- Section
6 of Law no. 2253 on the Establishment and Rules of Procedure of the
Juvenile Courts, as amended by Law no. 4963 of 30 July 2003,
provides:
“Criminal cases which concern crimes that normally
fall under the jurisdiction of the regular courts and are committed
by minors who are not yet eighteen years of age shall be examined by
the juvenile courts.”
- Article
34 of the Constitution provides:
“Everyone has the right to hold unarmed and
peaceful meetings and demonstration marches without prior permission.
...
The formalities, conditions, and procedures governing
the exercise of the right to hold meetings and demonstration marches
shall be prescribed by 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 prohibited demonstrations and processions on
public streets, in parks, places of worship and buildings in which
public services were based. Demonstrations organised in public
squares had to comply with security instructions and not obstruct
individual movement or public transport. Finally, section 24 provided
that demonstrations and processions which did not comply with the
provisions of this law would be dispersed by force on the order of
the governor's office and after the demonstrators had been warned.
- Section
16 of Law no. 2559 on the Duties and Powers of the Police provides:
“The police may use firearms:
(a) in self defence, ...
(h) or if a person or a group resists the police
and prevents them from carrying out their duties or if there is an
attack against the police.”
- Additional
section 6 of Law no. 2559 on the Duties and Powers of the Police
provides:
“In cases of resistance by persons whose arrest is
necessary or by groups whose dispersal is necessary or of an attack
or threat of an attack, the police may use violence to subdue these
actions.
Use of violence refers to the use of bodily force,
physical force and all types of weapons specified in the law and
gradually increases according to the nature and level of resistance
and attack in such a way as to restore calm.
In cases of intervention by group forces, the extent of
the use of force and the equipment and instruments to be used shall
be determined by the commander of the intervening force.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The applicants complained that they had been denied a
fair hearing by the domestic courts. They maintained that they had
never been given an opportunity to reply to the written opinion of
the Principal Public Prosecutor submitted to the Court of Cassation.
Furthermore, the police officers had impaired the fairness of the
proceedings by their intimidating and aggressive acts and the trial
judge had ignored that behaviour. Additionally, the applicant Rıza
Altuntov claimed that, as he had been a minor at the time of the
incident, he should have been tried by a juvenile court. The
applicants alleged a violation of Article 6 § 1 of the
Convention, which reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
Government contested the applicants' arguments and submitted that the
trial had been fair.
A. Alleged breach of the applicants' right to
adversarial proceedings
1. Admissibility
- 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.
2. Merits
- The
Government submitted that the written opinion of the Principal Public
Prosecutor was not binding on the Court of Cassation, as it was free
to decide on appeals regardless of the Prosecutor's opinion. They
further maintained that the applicants or their representatives had
had the right to consult the case file and examine the documents.
Finally, the Government pointed out that, on account of the recent
amendment of 27 March 2003, Article 316 of the Code of Criminal
Procedure now provided that the written opinion of the Principal
Public Prosecutor of the Court of Cassation must be sent to the
parties.
- The
applicants maintained their allegations.
- The
Court notes that it has already examined the same grievance in the
case of Göç v. Turkey and found a violation of
Article 6 § 1 of the Convention ([GC], no. 36590/97, § 58,
ECHR 2002 V). In that judgment the Court held that, having
regard to the nature of the Principal Public Prosecutor's submissions
and to the fact that the applicant had not been given an opportunity
to make written observations in reply, there had been an infringement
of the applicant's right to adversarial proceedings (loc. cit.
§ 55).
- The
Court has examined the present case and finds no particular
circumstances which would require it to depart from its findings in
the aforementioned case.
- Accordingly,
there has been a violation of Article 6 § 1 of the Convention.
B. Alleged unfairness of the proceedings as a result of
the police officers' intimidation
- The
applicants alleged that the police officers, who attended the
hearings, had impaired the fairness of the proceedings by
intimidating the accused. They claimed that the trial judge had
ignored these actions and had failed to note them in the record of
the hearings.
- The
Government claimed that these allegations were unsubstantiated.
- The
Court notes that the applicants have failed to submit any evidence in
support of their allegations. Furthermore, in convicting the
applicants, the first-instance court does not seem to have attached
any importance to the alleged acts or statements of the police
officers but rather to the evidence given by witnesses and the
applicants' defence submissions (see paragraph 10 above). In these
circumstances, it cannot be said that the trial court was unduly
influenced by the alleged conduct of the police officers who attended
the hearings.
- This
complaint is therefore manifestly ill-founded and must be
rejected in application of Article 35 §§ 3 and 4 of the
Convention.
C. The trial of Rıza Altuntov
- The
applicant Rıza Altuntov claimed that, as he had been a minor at
the relevant time, he should have been tried by a juvenile court. In
his opinion, his trial and conviction by a regular criminal court
amounted to a breach of his rights under Article 6 § 1 of the
Convention.
- The
Government submitted that Rıza Altuntov had been tried by a
regular criminal court in accordance with the domestic legislation
then in force. The domestic courts had taken into consideration his
age in the course of the trial and had applied the Criminal Code
provisions in his favour when deciding the sanction to be imposed on
him following conviction.
- The
Court notes that it has not had many cases in which it has considered
how this Article 6 § 1 guarantee applies to criminal proceedings
against children. It reiterates, however, that Article 6, read as a
whole, guarantees the right of an accused to participate effectively
in his criminal trial (see T. v. the United Kingdom [GC],
no. 24724/94, § 83, 16 December 1999). Furthermore, the primary
purpose of this provision is to ensure a fair trial by a “tribunal”
competent to determine any “criminal charge” on the basis
of the rule of law and in compliance with proceedings prescribed by
law (see, mutatis mutandis, Magee v. the United Kingdom,
no. 28135/95, § 41, ECHR 2000 VI, and Belilos v.
Switzerland, 29 April 1988, § 64, Series A no. 132).
Accordingly, it cannot be said that the trial of a minor under the
age of eighteen by a regular criminal court, rather than a juvenile
court, as such violates the fair trial guarantee under Article 6 §
1.
- Nevertheless,
the Court considers that it is essential that a child charged with an
offence is dealt with in a manner which takes full account of his
age, level of maturity and intellectual and emotional capacities, and
that steps are taken to promote his ability to understand and
participate in the proceedings (see T. v. the United Kingdom,
cited above, § 84).
- On
the above understanding, the Court notes that following the
amendments brought in by Law no. 4963 of 30 July 2003, the juvenile
courts' jurisdiction in criminal matters extended to minors under the
age of eighteen (see paragraph 14 above). However, prior to the
aforementioned amendment, the juvenile courts were only competent to
try minors under the age of fifteen. Therefore the applicant Rıza
Altuntov, who was not considered a minor at the relevant time as he
was seventeen and a half years old, was tried by a regular criminal
court in accordance with the domestic legislation then in force.
- However,
as is clear from the judgment of the Ankara Criminal Court of First
Instance, the trial judge took account of the applicant's age when
determining the sanction to be imposed on him and sentenced him only
to a fine (see paragraph 10 above). In these circumstances, given
that the applicant was effectively represented by a lawyer throughout
the criminal proceedings against him and that there was no indication
that the applicant, seventeen and a half years old, was unable to
understand and participate in the proceedings adequately, the Court
does not consider that the applicant's trial by a regular criminal
court as such amounted to a breach of his right to a fair hearing
under Article 6 § 1 of the Convention.
- It
follows that this complaint is also manifestly ill-founded and
must be rejected in application of Article 35 §§ 3 and 4 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLES 9, 10 AND 11 OF THE
CONVENTION
- The
applicants complained that the interference by the police with the
meeting was in violation of their rights to freedom of thought,
expression and assembly under Articles 9, 10 and 11 of the
Convention.
- The
Court considers that the applicants' complaints should be examined
from the standpoint of Article 11 alone, which reads in so far as
relevant as follows:
“1. Everyone has the right to freedom
of peaceful assembly and to freedom of association with others,
including the right to form and to join trade unions for the
protection of his interests.
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
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
1. Whether there was an interference with the exercise
of the 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 police intervention and the subsequent
conviction of the applicants for participating in the meeting
constituted, in itself, an interference with the applicants' rights
under Article 11.
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
imposed 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 unless it is “prescribed by law”, pursues
one or more legitimate aims under paragraph 2 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 section 22 of the Assemblies and
Marches Act (Law no. 2911), 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 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 refers in the first place to the
fundamental principles underlying its judgments relating to Article
11 (see Djavit An v. Turkey, no. 20652/92, §§
56 57, ECHR 2003 III, and Plattform “Ärzte
für das Leben” v. Austria, 21 June 1988, § 32,
Series A no. 139). It is clear from this case-law that the
authorities have a duty to take appropriate measures with regard to
lawful demonstrations in order to ensure their peaceful conduct and
the safety of all citizens (see Balçık
and Others v. Turkey, no. 25/02, § 46, 29 November
2007, and Oya Ataman v. Turkey, no. 74552/01, §
35, ECHR 2006 ....).
- The
Court also notes that States must not only safeguard freedom of
peaceful assembly, but must also refrain from applying unreasonable
indirect restrictions upon that right. Finally, it considers that,
although the essential object of Article 11 is to protect the
individual against arbitrary interference by public authorities in
the exercise of the rights protected, there may also be positive
obligations to secure their effective enjoyment (see Djavit An,
cited above, § 57, and Oya Ataman, cited above, §
36).
- The
Court considers that these principles are also applicable with regard
to demonstrations and processions organised in public areas. It
notes, however, that it is not contrary to the spirit of Article 11
if, for reasons of public order and national security, a priori,
a High Contracting Party requires that the holding of meetings be
subject to authorisation and regulates the activities of associations
(see Djavit An, cited above, §§ 66 67).
- Having
regard to the domestic legislation, the Court observes that at the
material time no authorisation was required for the holding of public
demonstrations; however, notification was required seventy-two hours
prior to the event. In principle, regulations of this nature should
not represent a hidden obstacle to the freedom of peaceful assembly
as protected by the Convention. It goes without saying that any
demonstration in a public place may cause a certain level of
disruption to ordinary life and encounter hostility. This being so,
it is important that associations and others organising
demonstrations, as actors in the democratic process, respect the
rules governing that process by complying with the regulations in
force (see Oya Ataman, cited above, § 38).
- In
the instant case, it appears that the applicants participated in a
gathering on 31 July 2000 in a park in order to protest against
F-type prisons regime and the violent clashes that had occurred in
Bergama Prison. However, police officers intervened in the meeting
and asked the participants to disperse (see paragraph 6 above).
Since the applicants and other participants did not comply with these
orders, the police officers used force to disperse the crowd. It
transpires from the parties' submissions that some demonstrators
responded violently and turmoil ensued, resulting in the injury of
three of the police officers and some protesters (see paragraphs 6
and 7 above).
- The
Court observes that there is no evidence to suggest that the group in
question initially presented a serious danger to public order.
Nevertheless, it is likely that they would have caused some
disruption in a central park in Ankara. It appears that the
protestors, including the applicants, wished to draw attention to a
sensitive subject concerning the conditions of detention in prisons
and that the gathering was initially peaceful. However, the
authorities intervened swiftly with considerable force in order to
disperse them, thereby causing tensions to rise, followed by clashes.
- In
the Court's view, 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.
- Accordingly,
the Court considers that in the instant case the forceful
intervention of the police officers was disproportionate and was not
necessary for the prevention of disorder within the meaning of the
second paragraph of Article 11 of the Convention. Finally, the Court
observes that the sanction imposed on some of the applicants, namely
one year and three months' imprisonment, cannot be considered
proportionate in the circumstances of the case (see paragraph 10
above).
- In
view of the above, the Court concludes that there has been a
violation of Article 11 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION
- The
applicants further complained, under Article 14 of the Convention,
that their conviction constituted discrimination on the ground of
their political opinions.
- The
Government contested that argument.
- Having
examined the material submitted to it, the Court considers that there
is no appearance of a violation of this provision.
- It
follows that this part of the application is manifestly ill founded
and must be declared inadmissible pursuant to Article 35 §§
3 and 4 of the Convention.
IV. 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
applicants each claimed the following amounts for pecuniary and
non-pecuniary damage:
– Sinan
Cem Uzunget claimed 50,500 euros (EUR) in respect of pecuniary and
EUR 100,000 for non-pecuniary damage. He further requested a re-trial
by the domestic courts in the event that the Court should find a
violation, the deletion of his criminal record and his reinstatement
to his post in the public service.
i) Alaattin
Uğraş claimed EUR 48,977 in respect of pecuniary and EUR
50,000 for non-pecuniary damage.
ii) İsmail
Temizyürek claimed EUR 47,000 in respect of pecuniary and EUR
50,000 for non-pecuniary damage.
iii) The
remaining applicants, Rıza Altuntov, Emre Altun, Hikmet Gökçe,
Kazım Savcı, Nazime Karakaya, Zeynep Şeker, Leyla Mahi
Uğraş, Songül Ergül, Esma Seviş, Fatma
Özcelik and Hüseyin Bolat each claimed an award only for
non-pecuniary damage in the amount of EUR 10,000.
- The
Government submitted that the amounts claimed in respect of pecuniary
and non-pecuniary damage were unsubstantiated. As regards the
applicants' claims for non-pecuniary damage, the Government contended
that any damage to be awarded should not lead to unjust enrichment.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- As
to the claims for non-pecuniary damage, the Court considers that the
applicants may be taken to have suffered a certain amount of distress
in the circumstances of the case. Ruling on an equitable basis, as
required by Article 41 of the Convention, the Court awards
each applicant EUR 1,000 for non pecuniary
damage.
B. Costs and expenses
- The
applicants each claimed EUR 3,120 for the costs and expenses incurred
before the Court.
- The
Government submitted that the amounts claimed were baseless and
excessive.
- According
to the Court's case-law, an applicant is entitled to reimbursement of
his costs and expenses only in so far as it has been shown that these
have been actually and necessarily incurred and were reasonable as to
quantum. In the present case, the Court notes that the applicants did
no more than refer to the Istanbul Bar Association's scale of fees in
respect of their legal representative's claims and failed to submit
any supporting documents. The Court therefore makes no award under
this head (see Balçık and Others, cited above, §
65).
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
- Declares the complaints concerning the alleged
breach of the applicants' rights to adversarial proceedings and to
freedom of assembly admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention in respect of the complaint concerning
the applicants' rights to adversarial proceedings;
- Holds that there has been a violation of Article
11 of the Convention;
- Holds
(a) that
the respondent State is to pay each of the applicants, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros), 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;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 13 October 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens
Deputy
Registrar President
