Information Note on the Court’s case-law 196

May 2016

Süleyman Çelebi et autres c. Turquie - 37273/10, 38958/10, 38963/10 et al.

Judgment 24.5.2016 [Section II]

Article 46

General measures

Article 46-2

Execution of judgment

Respondent State reminded that senior officials should not be excluded from scope of judicial scrutiny of use of force by security forces

Article 3

Degrading treatment

Inhuman treatment

Effect ive investigation

Excessive use of force to disperse demonstration and lack of effective investigation: violation

Article 11

Article 11-1

Freedom of peaceful assembly

Alleged inability of trade union to engage in collective bargaining owing to abolition of the relevant wages council: violation

Facts – The applicants were a number of individuals and a trade union who took part in a demonstration on 1 May 2008 in Istanbul that was dispersed by the police using violence. In the preceding weeks the Governor had stated on television that the planned march towards Taksim Square was unlawful and would be prevented. A gathering was nevertheless held and was dispersed by force. L arge quantities of tear gas were deployed, including in the garden of a hospital where some demonstrators had taken refuge. The applicants lodged criminal complaints alleging ill‑treatment, stating that they had been struck and had suffered respiratory pro blems. Their complaints were directed not only against the police officers who had intervened at the scene, but also against the Governor of Istanbul and the Head of the Istanbul Security Directorate. The Minister of the Interior, who was the subject of a separate complaint, refused to institute any investigation concerning the last two of these, despite a request to that effect from the public prosecutor at the Court of Cassation and the setting-aside by the Supreme Administrative Court of an initial decis ion not to prosecute. Meanwhile, some of the applicants were prosecuted for participation in an unlawful demonstration and acts of rebellion, but were acquitted.

Law

Article 3 ( substantive and procedural aspects ): The injuries observed by doctors to two of the applicants, who had not engaged in violence, were to be considered attributable to the aggressive police operation to break up the demonstration. As such treatment was not justified simply in order to dispe rse a demonstration, it constituted inhuman and degrading treatment.

In view of the arguable nature of the allegations made, an effective investigation had been required. That requirement had not been satisfied.

Firstly, the police officers involved had no t been prosecuted. The prosecuting authorities had discontinued the proceedings, thereby disregarding their new powers in that sphere, and the Minister had not instituted a disciplinary investigation.

Secondly, the persons who had issued the orders had not been the subject of a judicial investigation. In the present case the Governor and then the Head of the Security Directorate had given the order to disperse the crowd, in their capacity as hierarchical superiors. The Minister of the Interior had opposed a ny proceedings against them on the grounds that they had not been present at the scene and that there was no evidence of their involvement by virtue of the orders they had given.

The Court considered that, in view of the remarks made by the Governor in the media and the scale of the means employed – extending to the use of tear-gas grenades in the grounds of a hospital – it was difficult to imagine that the police officers had not been following very specific instructions. Only a criminal investigation conc erning the police officers and also the Governor and Head of the Security Directorate, who had given the orders, would have been able to shed light on the content and scope of the orders received by the police officers.

Conclusion : violation in the case of the third and fifth applicants (unanimously).

Article 11: The authorities had stopped the gathering before the planned march to Taksim Square had even begun. It was true that the Istanbul Governor’s office had informed the public of the locations authoris ed for the demonstrations. However, the chosen venue had had a certain symbolic significance. The need for authorisation should not act as a disguised obstacle to freedom of peaceful assembly.

With regard to the use of tear gas, the Court criticised the us e of indiscriminate force that made no distinction between the demonstrators and individuals who happened to be in the garden of a hospital.

The Court agreed with the reasoning of the judicial decisions given in the applicants’ favour by the first-instance courts – which had also made reference to Articles 10 and 11 of the Convention – in particular regarding the fact that the demonstrators had not engaged in violence prior to the police intervention. The criminal investigations instituted against the appli cants for breaches of the Demonstrations Act had thus ended in their being acquitted. However, their complaints seeking to establish the responsibility of the authorities at various levels of the hierarchy, which had highlighted the interference with their right to demonstrate as protected both by the Constitution and by Article 11 of the Convention, had all been dismissed at last instance without any examination, either with regard to the necessity of the intervention in question or to the proportionality of the force used.

There had been no pressing social need capable of justifying the complete lack of tolerance which the authorities had shown towards the demonstrators by interfering – in violent fashion – with the exercise of their freedom of peaceful as sembly*. In view of the brutality of the police intervention in the present case, particularly regarding the use of tear gas, the lack of any judicial scrutiny of its proportionality and necessity was apt to dissuade trade-union members and other members o f the public from taking part in lawful demonstrations.

Conclusion : violation (unanimously).

Article 41: EUR 10,000 to the third and fifth applicants and EUR 7,500 each to the remaining applicants (including the trade union) in respect of non-pecuniary dam age.

Article 46: The persistent use of excessive force to disperse peaceful demonstrations and the systematic use of tear-gas grenades, which were potentially lethal weapons, was liable to make members of the public fearful of participating in demonstratio ns and thus discourage them from exercising their rights under Article 11. In the face of an increase in similar applications** the Court reiterated the need for effective judicial scrutiny of the security forces’ actions in dealing with demonstrations. In order to be viewed as effective, such scrutiny must be capable of leading, as applicable, to proceedings being brought against the persons (such as senior officials) who had issued the orders.

*  The Court previously found a violation of Article 11 in rel ation to the same demonstration in its judgment in Disk and Kesk v. Turkey , 38676/08 , 27 November 2012.

**  See also the decision of the Committee of Mi nisters of the Council of Europe of 12 March 2015 ( Cases no. 20 – Oya Ataman group against Turkey).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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