CASE OF DİSK AND KESK v. TURKEY
Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - finding of violation sufficient
András Sajó;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre
4. On 29 April 2008 the applicants jointly notified the Beyoğlu district governor that they would be gathering before the Taksim Atatürk memorial on 1 May 2008 at 1 p.m. to celebrate Labour Day and commemorate their friends who had lost their lives during the demonstrations of 1 May 1977. 5. On 30 April 2008 the Beyoğlu district governor authorised a gathering at the requested location for representatives of trade unions only. The district governor specifically indicated that a demonstration on a larger scale at the said location was not authorised. 6. Subsequently, certain government authorities, including the Minister of the Interior and the Government’s spokesman, as well as the Istanbul Governor’s office, issued press statements, declaring that they were in possession of intelligence reports which precluded them from authorising any demonstration in Taksim Square, for security reasons. The authorities held that any demonstration held in Taksim on 1 May 2008 would be unlawful and unconstitutional on account of possible provocations and disruption of traffic and public order. They further stated that they were going to take extensive security measures on 1 May 2008, including shutting down certain schools in the nearby districts, stopping the operation of ferries and subways, blocking the roads leading to Taksim Square and deploying extra police for that day. As alternative locations, the Istanbul Governor’s office indicated four other squares for the demonstration, namely two on the European side and two on the Anatolian side of Istanbul. 7. On 30 April 2008 the first applicant lodged a complaint against the Governor of Istanbul with the Istanbul public prosecutor, accusing him of denying the trade unions their right to assembly in a discriminatory manner. The first applicant complained that there was no justification for denying them access to Taksim Square on Labour Day, when the same location was available for other large-scale demonstrations and celebrations (investigation no. 2008/20905). 8. At approximately 6 a.m. on 1 May 2008, members of the DİSK and KESK began gathering in front of the DİSK headquarters located in the district of Şişli for Labour Day celebrations. At around 6.30 a.m. the police asked the group to disperse, warning them that they were acting in violation of the Assemblies and Marches Act (Law no. 2911). The members of the group refused, arguing that they were merely waiting in front of the DİSK headquarters, which was a pedestrian area, and that they were not violating the said law in any way. The police, however, proceeded to disperse the group, by spraying them with pressurised water, paint and tear gas, both inside and outside the DİSK building. 9. Similar police interventions occurred over the next couple of hours with increasing intensity. Some of the demonstrators were injured as a result of the use of force by the police. While the injured demonstrators were trying to reach the nearby Şişli Etfal Hospital for medical care, they were chased by the police and were subjected to gas attacks even within the hospital premises. Some members of the DİSK were arrested. 10. At approximately 10.30 a.m. the group of demonstrators broke up of its own accord to forestall any further violence. 11. On 2 May 2008 the Chief of Şişli Etfal Hospital gave a statement to the police, stating that on 1 May 2008 around 20-30 demonstrators had entered the hospital and opened a banner. Subsequently, police officers had also entered the hospital premises in their pursuit and used a gas bomb in the hospital’s garden to neutralise the demonstrators. He further explained that one of the police officers had mistakenly sat on a gas bomb and exploded it in the police car parked at the entrance of the Emergency Service; as a result staff working in the Emergency Service as well as some of the patients had been affected. He concluded by stating that the gas bomb was not deliberately thrown in the hospital building. 12. On an unspecified date after 1 May 2008, the director of the DİSK, along with other persons, lodged a complaint with the Istanbul public prosecutor against various authorities, including the office of the Prime Minister, the Minister of the Interior, the Minister of Justice, the Istanbul Governor’s office, the Head of the Istanbul Security Directorate and the police officers involved in the incidents of 1 May 2008, accusing them of breach of the right to freedom of assembly and a disproportionate use of force (investigation no. 2008/59361). On an unspecified date, the public prosecutor issued a decision of lack of jurisdiction in connection with the complaint lodged against the Istanbul Governor and the Head of Istanbul Security Directorate. The case file was accordingly transferred to the Public Prosecutor’s Office at the Court of Cassation. Pursuant to the terms of Law no. 4483, the public prosecutor at the Court of Cassation sought authorisation from the Minister of the Interior to prosecute the Istanbul Governor and the Head of Istanbul Security Directorate. On an unspecified date, the Minister refused to do so. Consequently, on 8 April 2009 the public prosecutor decided not to proceed with the case. This decision was notified to the applicants’ lawyer on 16 April 2009. The applicant’s appeal lodged against this decision was further dismissed by the Supreme Administrative Court as the court held that pursuant to domestic legislation, no appeal was possible against the decision of 8 April 2009. 13. Regarding the complaint lodged against the Prime Minister, the Minister of the Interior, and the Minister of Justice, on 1 February 2009 the Istanbul public prosecutor delivered a decision of non-prosecution, holding that pursuant to the Constitution, the Prime Minister, the Minister of the Interior, and the Minister of Justice could not be held liable for their actions in the course of their duties. This decision was served on the applicants’ lawyer on 24 February 2009. The applicants’ appeal was rejected on 22 May 2009 by the Sincan Assize Court, which held that no objection could be lodged against the decision of the public prosecutor dated 1 February 2009. 14. On 5 May 2008 the representative of the first applicant handed to the Şişli public prosecutor an undetonated gas bomb belonging to the police force, found inside the DİSK headquarters following the events of 1 May 2008. 15. On 19 June 2008, upon a complaint lodged by the Istanbul Governor’s office, the Beyoğlu public prosecutor questioned the director of the DİSK in relation to the events that took place on 1 May 2008 (investigation no. 2008/9241). It appears from the documents in the case file that no prosecution was initiated against the applicants in relation to the events of 1 May 2008. 16. 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.” 17. Section 22 of Law No. 2911 prohibits demonstrations and processions on public streets, in parks, places of worship and buildings in which public services are based. Demonstrations organised in public squares have to comply with security instructions and not disrupt individuals’ movements or public transport. Finally, Section 24 provides that demonstrations and processions which do not comply with the provisions of this law will be dispersed by force on the order of the governor’s office and after the demonstrators are warned.