ECtHR: Turkish gov’t violated freedom to demonstrate by imposing fines on demonstrators

The European Court of Human Rights (ECthR) has ruled on Tuesday that Turkish government has violated freedom to demonstrate by imposing fines on demonstrators without adequate judicial review.

By ruling on an application by Turkish citizens Adnan Öğrü, Veysel Kurtuluş Alabaş and Beyhan Günyeli, two of whom were members of the local branch of the Human Rights Association (İHD), the ECtHR has decided the imposition of the fine on three demonstrators by a local court had amounted to an indirect deprivation of the applicant’s freedom of assembly.

According to the ruling, between December 2009 and April 2010 the applicants took part in peaceful demonstrations in Adana province. Öğrü took part in three demonstrations, Alabaş in five and Günyeli in one. During the demonstrations scores or hundreds of people met up and marched, holding placards and chanting slogans and sometimes blocking road traffic. All the demonstrations broke up peacefully after a public statement had been read out. Some of them were preceded or accompanied by sit-ins.

Under a Gubernatorial Decree of November 2009 restricting the places and times when demonstrations were authorised and prohibiting the carrying of placards and the chanting of slogans, the three applicants were ordered to pay administrative fines of 143 Turkish Lira (about 70 euros), on several occasions in the cases of Öğrü and Alabaş.

All three applicants appealed against the fines. Their appeals were dismissed by a series of decisions by the Adana District Court, which ruled that the fines had been in conformity with the law and that the veracity of the charges against the applicants had not been contested. Only Öğrü had one of his fines, which was imposed during a demonstration which was not one of those giving rise to the present application, cancelled by the district court by a decision of 19 April 2010. In its decision, the court, with reference to Articles 10 and 11 of the Convention and the case-law of the Court, concluded that the imposition of the fine had amounted to an indirect deprivation of the applicant’s freedom of assembly.

Relying on Article 10 (freedom of expression) and Article 11 (freedom of assembly and association), the applicants alleged that their fines had amounted to a violation of their rights to freedom of expression and of peaceful assembly as secured under the Convention. The second applicant also relied on Article 6 (right to a fair trial) owing to the lack of a hearing during his appeal before the district court, and on Article 13 (right to an effective remedy) because he had been unable to contest the dismissal of his appeal.

The applications were lodged with the European Court of Human Rights on August 31, 2010, May 2, 2011 and November 23, 2010 respectively. The Turkish government submitted an objection as to admissibility, stating that since the fines had been quite lenient the applicants could not complain that they had suffered major damage.

However, ECtHR considered that although the fines appeared lenient a priori, they had nevertheless had a major impact on the applicants’ economic situations, in particular owing to the number of fines involved and the first applicant’s low income. Since the applicants were human rights activists, the alleged violation was liable to have serious effects on their exercise of the right to demonstrate. Furthermore, the ECtHR reiterated the crucial importance of freedom of peaceful assembly as a cornerstone of democratic society. It therefore rejected the Government’s objection.

The ECtHR has noted that the review conducted by the district courts in the framework of the applicants’ appeals against their fines had been very limited in scope. The judges had merely verified the accuracy of the facts by referring to police records of incidents. The judges did not appear to have attempted to balance the various competing interests, that is to say, on the one hand, the exercise of the right to demonstrate peacefully, and on the other, the preservation of public order and the protection of the rights and freedoms of others.

In particular, the courts had ignored the applicants’ pleas concerning the peaceful nature of the demonstrations and the circumstances under which they had taken place. The Court emphasised that the domestic courts should have adjudicated on the proportionality of the impugned interference with the applicants’ rights. It reiterated that by reason of their direct and continuous contact with the realities of their countries, the domestic courts were best placed to strike a fair balance between the various competing interests.

The ECtHR noted that the Adena District Court had granted Öğrü’s appeal against a fine imposed on him following another demonstration unconnected to those giving rise to the fines challenged in the instant case. The ECtHR had based its decision on Articles 10 and 11 of the Convention and the Court’s case-law. In the present case, however, the domestic courts had not weighed up the competing interests. The ECtHR therefore considered that they had failed to provide relevant and sufficient grounds to establish that the interference had been “necessary in a democratic society”.

Since the impugned fines had not been the subject of an adequate judicial review, the ECtHR concluded that there had been a violation of Article 11.  The ECtHR held that Turkey was to pay Ögrü 240 euros (EUR) and Günyeli EUR 80 in respect of pecuniary damage.

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