Information Note on the Court’s case-law No. 164
June 2013
Gün and Others v. Turkey - 8029/07
Judgment 18.6.2013 [Section II]
Article 11
Article 11-1
Freedom of peaceful assembly
Criminal conviction for organising illegal demonstration that ended in violence: violation
Facts – On 14 February 2005 the Security Directorate stated that it had received information to the effect that on the following day, the anniversary of the arrest of Abdullah Öcalan, head of the terrorist organisation the PKK, unlawful demonstrations were going to be staged in Cizre. The Directorate stated that, in the past, on the occasion of similar demonstrations or statements to the press, troublemakers had campaigned in support of the terrorist organisation or its leader. The same day, the events and demonstrations due to be held between 14 and 20 February 2005 were suspended. However, on 15 February a group of around two hundred people gathered in order to march and make a statement to the press and the public. Although the demonstrators were ordered to disperse, the statement was read out and the gathering broke up without police intervention. However, clashes ensued between the police and a group of around ten demonstrators. The applicants, having been identified as the organisers of the demonstration, were each sentenced to one year and six months’ imprisonment and to payment of a criminal fine on the basis of section 28(1) of the Assemblies and Demonstrations Act and the decree suspending all demonstrations between 14 and 20 February 2005.
Law – Article 11: The applicants’ conviction amounted to interference with their right to freedom of assembly. The interference had pursued the legitimate aims of preventing disorder and crime and protecting public safety.
As to whether the interference had been necessary, on the day of the unlawful demonstration, well before it had taken place, the police and the administrative authorities had been able to make the necessary arrangements to preserve public safety and prevent disorder. Furthermore, the police had not stopped the press statement from being read out and had not dispersed the crowd until it had been read. Hence, the demonstration attended by the applicants had been tacitly tolerated or had at least not been prohibited in practice, and the applicants’ intentions had been peaceful. The persons concerned had therefore been allowed to exercise their right to peaceful assembly, given that they had been able to attend the demonstration in question during which the press statement had been read out, and the national authorities had displayed the level of tolerance required towards such a gathering.
However, the applicants had not been convicted of throwing stones at the police officers or inciting the demonstrators to violence. They had been convicted on account of having led the demonstration as such, which had been staged in breach of the legislation, rather than on account of specific actions amounting to a criminal offence committed during the demonstration, which had passed off peacefully. It was legitimate, on grounds of public order and national security, for the holding of assemblies to be subject to authorisation and for the movement of persons during peaceful assemblies to be regulated. However, as the Government had submitted only general statistics, it could not be established whether the situation prevailing at the time of the events in Cizre had been tense and thus liable to give rise to a series of riots or disturbances sparked by such demonstrations. Furthermore, the damage to persons and property caused by a group of unidentified individuals following the demonstration in question was not a decisive factor justifying the suspension of all events and demonstrations for one week. The evidence in the file also made clear that the applicants’ intentions had been wholly peaceful. Moreover, the police had never arrested the perpetrators of the acts in question, nor did there appear to have been a police investigation aimed at identifying and arresting them. Lastly, the sentence imposed had been excessive in so far as it was liable to discourage persons belonging to an association or a political party from exercising their right to demonstrate under Article 11 of the Convention, for fear of criminal sanctions. The freedom to take part in a peaceful assembly was of such importance that it could not be restricted in any way, even for the leaders or members of a lawful political party, so long as the persons concerned did not themselves commit any reprehensible act on such an occasion. Accordingly, a fair balance had not been struck between, on the one hand, the general interest requiring the protection of public safety and, on the other, the applicants’ freedom to demonstrate. The criminal conviction imposed on the applicants could not be reasonably regarded as meeting a “pressing social need”.
Conclusion: violation (unanimously).
Article 41: EUR 7,500 to each of the applicants in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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