Communicated on 5 September 2014
SECOND SECTION
Application no. 70098/12
Orhan ALICI and others
against Turkey
lodged on 12 October 2012
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are members of KESK (Kamu Emekçileri Sendikaları Konfederasyonu – Confederation of Public Employees’ Trade Unions) and Eğitim-Sen (Eğitim ve Bilim Emekçileri Sendikaları Konfederasyonu – Confederation of the Education and Science Workers’ Union).
On 27 March 2012 the Turkish Parliament prepared a draft bill to amend the Law on Public Workers’ Unions (Law No. 4688). While this draft was being discussed before Parliament, KESK organised a meeting in Ankara to protest against the draft bill. The aim was to draw public attention to and to achieve the withdrawal of this bill.
On 27 March 2012 the applicants departed for Ankara in order to participate in the demonstration. At around 11.40 p.m. the applicants’ bus was stopped by police officers. Subsequently, the applicants were taken into police custody for the purpose of conducting an identity check pursuant to Article 40 of the Misdemeanours Act (Law no. 5326). In their submissions before the Court, the applicants state that they submitted their identities to the police officers. There is no official report or document regarding the conduct of their identity check in the case file.
On 28 March 2012 the applicants were released from police custody. However, they were unable to attend the meeting organised by KESK.
The Adana Governorship imposed administrative fines in an amount of 82 Turkish liras (approximately 28 Euros) on each applicant. It held that Article 40 of the Misdemeanours Act (Law no. 5326) had been infringed by the applicants’ refusal to disclose their identities to the police.
The applicants filed objections against the decisions.
On 9 May 2012, 25 May 2012, 12 July 2012, 31 August 2010, 3 September 2012, 4 September 2012 the Adana Magistrates’ Court dismissed the applicants’ objections by decisions against which no appeal was available, without holding hearings.
B. Relevant domestic law
The relevant sections of the Misdemeanors Act (Law no. 5326) read:
Section 27
“Objections to administrative sanctions or fines shall be brought before the criminal magistrates’ court.”
Section 28
“...
(4) The court shall notify the claimant of the defendant’s pleas. The court may hear the parties on a set day and [at a set] time, either at the parties’ request or on its own motion. There shall be at least one week between the notification and the hearing day. Both the parties or their representatives shall be present during the hearing. The decision may be rendered in the parties’ absence if they are not present without legitimate reason. This shall be clearly specified in the notification letter.
(7) After having evaluated all the evidence in its possession and having heard the submissions of both parties, the court shall give the party against whom the fine or sanction was issued [the opportunity] to make a final statement. The court shall render its final decision in the presence of both parties.
(8) The court,
a. rejects the objection if it finds the fine or sanction to be lawful;
b. annuls the fine or sanction if it finds it to be unlawful.
10) Decisions of the magistrates’ courts, concerning fines up to 3,000 Turkish Liras are final.”
Section 40
“(1) Persons shall have an administrative fine of 50 Turkish liras imposed if, upon the request of a public official acting within his/her duty, they refuse to give information or give wrong information about their identity or address.
(2) If someone’s identity cannot be determined due to his/her refusal to give information or by giving wrong information, he/she shall be seized and the public prosecutor shall be informed immediately. He/she shall be arrested and if needed, be remanded in detention until determination of his/her identity.”
COMPLAINTS
The applicants complain that their detention from 27 March 2012 until 28 March 2012 was in breach of Article 5 of the Convention.
They further complain under Articles 6 § 1 and 13 of the Convention that they were unable to defend themselves in person or through legal assistance, as there were no public hearings during their trials.
Invoking Articles 10 and 11 of the Convention, the applicants complain that their detention prevented them from taking part in the demonstration, which constituted a violation of their freedom of expression and freedom of assembly.
QUESTIONS TO THE PARTIES
1. Do the facts of the case disclose an unjustified interference with the applicants’ right to liberty under Article 5 of the Convention, having regard to the applicants’ detention on 27 March 2012?
In that connection, the Parties are requested to inform the Court about the exact length of their detention.
2. Were public hearings held during the criminal proceedings against the applicants, as required by Article 6 § 1 of the Convention? In that connection, did the applicants request a public hearing pursuant to Section 28 § 4 of the Misdemeanours Act (Law no. 5326)?
Furthermore, is there any official report or document regarding the conduct of the applicants’ identity check?
3. Has there been an interference with the applicants’ right to freedom of peaceful assembly within the meaning of Article 11 of the Convention? If so, was the interference in compliance with Article 11 § 2 of the Convention?
Appendix
Orhan ALICI Kenan ASLANTAŞ Gülistan ATASOY Ergün ATLIĞ Ulaş Yoldaş BAZO Çağdaş BEKTAŞ Güven BOĞA Eser ÇAPAR İmam GÖZCÜÜlkü GÜLŞENHüseyin GÜRSOYErdal KARABULUTAhmet KARAGÖZFadime KARAGÖZSüleyman KAVUNCUOĞLUHaydar Sinan KOLUAÇIKMehmet İnan KOLUAÇIKAli PALTAÖzlem TEMAMOĞULLARIMehtap YANIKAli YAPTATEREKMetin YILMAZ
Full & Egal Universal Law Academy