CONCURRING OPINION OF JUDGE SAJÓ

I agree with my brethren that the right to demonstrate of the applicant trade unions has been violated in the present case. In order to avoid any misunderstanding I find it useful to add a few points of clarification.

Whilst the victim status of non-governmental organisations has been recognised in our jurisprudence (see, for example. Rassemblement Jurassien Unité Jurassienne v. Switzerland , no. 8191/78, Commission decision of 10 October 1979 , Decisions and Reports (DR) 17, p. 108, and Christians against Racism and Fascism v. the United Kingdom , Commission decision of 16 July 1980, DR 21, p. 153), this has primarily been in the context of a refusal to allow a demonstration. In the present case, however, the finding of a violation with regard to the two applicant trade unions does not concern a ban on having a demonstration. The applicants, through the representatives of the respective trade unions, were expressly granted the right to pay homage in Taksim Square to those killed there in 1977 (see paragraph 5). In the light of the nature of the violation (see below) it is clear that, by restricting the right to demonstrate of those present in front of the D İ SK HQ, the applicant trade unions ’ right of assembly was breached, albeit in a different regard, and there can therefore be no doubt as to their victim status.

Following the notification by the applicants, as the organisers, of a planned demonstration, the district Governor prohibited a large-scale gathering on Taksim Square on May 1st, though four other squares of Istanbul were identified by the authorities as places where commemorative assemblies could have been held on the same day. Among the reasons given for limiting the presence on Taksim Square the authorities mentioned security concerns. In particular, the Government claimed that “it was established by the security forces that various terrorist organisations were prepared for provocative actions and they would attack ... the security forces”. The ban served, in principle, the interests of national security or public safety, or the prevention of disorder or crime. This is a legitimate ground for limiting the right of assembly, at least as long as these grounds can be convincingly demonstrated to exist. N either a hypothetical risk of public disorder, nor the presence of a hostile audience are legitimate grounds for prohibiting a peaceful assembly (see Makhmudov v. Russia , no. 35082/04, 26 July 2007). Moreover, the choice of venue, though subject to otherwise acceptable limitations, is part of the right to demonstrate.

The Court, in the present case, considers that it is not called on to rule on the choice of the venue of the demonstrations, or to determine whether or not there was a security risk if a demonstration were to be held in Taksim Square . However, in the absence of any refutation of the authorities ’ claim of a security risk, it can be accepted that such a risk must have existed.

Once such a risk exists, one cannot in principle deny that preventive measures intended to hamper access to the secured area may be reasonable and, therefore, necessary, and the national authorities are better placed to evaluate the appropriateness of the measures. For the application of such preventive measures see Scozzari and Giunta v. Italy ( [GC], nos. 39221/98 and 41963/98, ECHR 2000 ‑ VIII ), Christians against Racism and Fascism (cited above), Rai, Allmond and “ Negotiate Now ” v. the United Kingdom (n o. 25522/94 , Commission decision of 6 April 1995), and Schwabe and M.G. v. Germany ( nos. 8080/08 and 8577/08, ECHR 2011 ) . In such cases the issue for the Court is the proportionality of the preventive (restrictive) measures.

In the present case people started to gather around 6 a.m. in front of the D İ SK HQ in the Şişli district of Istanbul, allegedly on the pavement. This gathering was not a notified gathering, and it was therefore illegal under Turkish law. The illegality of a gathering does not, per se , preclude the finding of a violation under Article 11 of the Convention. The authorities have to show a certain level of tolerance, irrespective of the legality of a gathering. The Government argued that there had been several warnings, and the level of force used was only gradually increased, once it was clear that the people present were not willing to disperse. Moreover, the Government argued that the demonstrators had begun to march towards Taksim Square . Further, the representatives of the trade unions were able to make a press statement, and they decided to disperse. The applicants did not respond to the Government ’ s observations in the form required by Rule 34 § 2 of the Rules of Court. The Court did not find those observations to be refuted. As the security risk at Taksim Square cannot be ruled out, it was also reasonable to take preventive measures that would prevent demonstrators from going there.

Are these preventive measures not likely to prejudice the right of assembly? The applicable standard is the following: “ Even if there is a real risk of a public demonstration resulting in disorder as a result of developments outside the control of those organising it, such a demonstration does not as such fall outside the scope of Article 11 § 1, but any restriction placed on such an assembly must be in conformity with the terms of paragraph 2 of that provision (see Christians against Racism and Fascism ... , and, mutatis mutandis , Ezelin , ... § 41).” (see Schwabe and M.G. , cited above , § 103 ) .

In view of the facts as evaluated in paragraphs 33-34 of the judgment, the intervention to disperse people was disproportionate and very frightening. It is true that the authorities made a number of public squares available for demonstrations on May 1 st , but the Government could not prove that efforts were made at the Şişli gathering to invite people to demonstrate at the designated squares, and to help them access those sites when public transportation was restricted as a precautionary measure. The level of force used in the dispersion was such that it could have had a chilling effect on t he applicants and other participants in the assemblies. It could also have discouraged other persons from participating in lawful May 1 st assemblies on the grounds of the resulting uncertainty as to the lawfulness of other demonstrations, in view of the hostile attitude of the authorities that was demonstrated in front of the D İ SK HQ (see mutatis mutandis, Bączkowski and Others v. Poland , no. 1543/06, § 67 , 3 May 2007 ).

It remains to be seen how the impact of the disproportionate use of force, in so far as it had a chilling effect on demonstrators at ÅžiÅŸli, and others who intended to follow the call of D Ä° SK and KESK, makes these trade unions victims of the above violation.

First, the two trade unions are victims directly, as organisers of a demonstration to commemorate the Taksim massacre. Secondly, and additionally, they have standing also on behalf of the demonstrators (both members of D İ SK and KESK and others who intended to participate in response to the call of these trade unions). The participants or would-be participants, together with the organisers, are a de facto “common subject” of the planned demonstration; this unity follows from the nature of the “subject” of the right to demonstrate in the specific situation of a non-spontaneous demonstration, where organisers and the crowd act inseparably. A demonstration is not, at least in the typical case, an occasional coming together of randomly participating individuals. Thirdly, the freedom of assembly of the applicant organisations has been breached directly and indirectly in view of their trade union status. Trade unions have a right to represent members without a specific mandate in matters related to the functions of the given union. A trade union must be considered to be entitled to act in its own name as well as on behalf of its members and represent their rights. In the present case, to celebrate Labour Day and commemorate friends of the trade union and its members who had lost their lives during t he demonstrations of 1 May 1977 clearly entered into the general mandate of the two trade unions concerned.