JOINT PARTLY DISSENTING OPINION OF JUDGES SAJ Ó, KELLER AND K Ū RIS

1 . To our regret, we cannot follow the majority in its finding that there has been no violation of Article 10 of the Convention in the present case.

2 . The Government provided the following version of the facts: the police received information according to which TAYAD members were distributing leaflets. One of the officers approached the applicant and her friends, told them that he was a police officer and requested to see the content of the leaflets and their identity cards. As the applicant and her friends refused to comply and began using offensive language and hitting him, a second police officer intervened. This version of the facts is contradicted by the applicant.

The applicant was convicted of obstructing the police officers in the execution of their duties and insulting them. The Court found that the allegations of ill-treatment had not been effectively investigated by the national authorities. For this reason alone it is already questionable whether the intervention in the distribution was lawful.

3 . But our disagreement raises a more fundamental issue. We agree with the majority: the interference with the applicant ’ s Article 10 right consists in the intervention of the police in the distribution and the applicant ’ s arrest. Nevertheless, the majority is of the view that the applicant was punished for not showing her identity card and resisting the police order. This matter is, however, immaterial with regard to the police interference with the distribution of the leaflets.

4 . As the reasons for the arrest remain contested, we will consider the first interference – the fact that the police, acting upon information received, went to inquire about the distribution of the leaflets and asked for the identity cards of those distributing the leaflets. In the absence of any information in the case file or detailed submissions by the respondent Government demonstrating the legal basis for the interference with the applicant ’ s right to freedom of expression, we have serious doubts as to whether the police intervention and the applicant ’ s arrest were based on any statutory provisions.

5 . We start from the assumption that this case originated in a targeted police action against the distribution of the leaflets (see paragraph 11 of the judgment). It is of decisive importance that the police found it to be a matter of police concern that TAYAD members were distributing leaflets, although neither the organisation on whose behalf the leaflets were distributed nor the leaflets themselves were illegal. This Court has already dealt with action by the Turkish authorities directed against TAYAD members distributing leaflets and has found such interference to be in violation of Article 10 of the Convention (see Kara v. Turkey , no . 22766/04 , 30 September 2009; for police action at a demonstration involving TAYAD which resulted in a violation of Article 3 under both its procedural and its substantive aspects, as well as a violation of Article 11, see Özalp Ulusoy v. Turkey , no. 9049/06, 4 June 2013).

6 . True, in many legal systems there is a requirement to show identity cards at the request of the police and the police are entitled to ask for such identification in situations determined by the law. It goes without saying that these provisions must be applied in a reasonable manner. If the police could disperse any demonstration by means of systematic identity checks of the demonstrators, this would amount to the end of freedom of expression in public space. The majority, following the Government ’ s argument, considered the interest in public order and the prevention of crime to constitute sufficient grounds for the police intervention. This approach is in our view too broad because it gives the police carte blanche when it comes to identity checks. We start from the self-evident maxim that under the rule of law the police are also required to respect fundamental human rights, including freedom of expression. According to the case-law of this Court interference with the exercise of a fundamental human right in the abstract name of public order, without consideration of the necessity of such interference in a democratic society, amounts to a violation of Article 10 of the Convention.

We are concerned that in the present case this standard requirement of the Court ’ s case-law was put aside. Having regard to the lessons of history, we are particularly concerned about the chilling effect of similar police practices. State authorities may compile lists of people participating in demonstrations and/or distributing leaflets or other materials which are officially not considered prohibited and use this personal information in different contexts against these people or those allegedly associated with them. Thus, it is understandable that people exercising their freedom of expression by distributing leaflets, especially where these criticise the government, are afraid of disclosing their identity.

7 . The above is a fundamental consideration for the effective protection of freedom of expression, especially in the given circumstances (see Kara , cited above). It is unfortunate that the crucial restriction which the targeted police action entailed was obfuscated by legal formalities and the alleged disobedience of police orders: a situation that emerged because of the disregard by the police of the applicant ’ s freedom to distribute leaflets. The only reason why the police requested the identity cards of the applicant and her friends was the fact that the leaflets were being distributed by persons whom the police suspected to be TAYAD members or supporters.

8 . In our opinion, this seemingly minor incident, disguised as the neutral application of a neutral law in a simple situation, deserves the utmost attention by the Court because the exercise of a fundamental freedom cannot exist without the authorities showing the necessary respect and tolerance (compare and contrast É va Moln á r v. Hungary , no. 10346/05, 7 October 2008, § 43). The Court must always be vigilant in ensuring that States not only safeguard the right to distribute leaflets, as a manifestation of the freedom of expression protected by Article 10 of the Convention, but also refrain from imposing unreasonable indirect restrictions on that right. The essential aim of Article 10 (and Article 11) of the Convention is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected (see, mutatis mutandis , Oya Ataman v. Turkey , no. 74552/01, 5 December 2006, § 36). With this judgment, that aim has been dismissed.