CASE OF UZUNGET AND OTHERS v. TURKEY
Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 11;Non-pecuniary damage - award;Pecuniary damage - claim dismissed
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. On 19 December 2002 the Court of Cassation upheld the decision of the first-instance court. 13. 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 ...” 14. 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.” 15. 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.” 16. 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...” 17. 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. 18. 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.” 19. 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.”