Identity check used as pretext to prevent applicants from attending demonstration: violation of the Convention
JUDGMENT
Alıcı and others v. Turkey 24.05.2022 (app. no. 70098/12)
SUMMARY
The case concerned applicants who were arrested while travelling by bus from Adana to Ankara to take part in a demonstration and who
incurred an administrative fine for withholding their identities from the police who stopped their
bus.
The Court found that the main reason for arresting and detaining the applicants had been to prevent
them from travelling to Ankara and thus from participating in demonstrations which had been
declared unlawful. In particular the Court observed that the applicants had not been released until
2.50 p.m. on 28 March 2012, whereas their identities had been determined by 4.50 a.m. Nothing
had warranted holding them after their identities had been established. In any event their detention
had ceased to be warranted to secure fulfilment of the obligation to identify themselves and no
longer fell within Article 5 § 1 (b) of the Convention. The Court also specified that the material in the
case files did not show that all the conditions had been met for arresting and detaining the
applicants in order to compel them to fulfil a concrete and specific obligation already incumbent on
them which they had until then failed to satisfy. The Court reiterated that an arrest would be
acceptable only where fulfilment of an “obligation prescribed by law” could not be secured by
milder means. Accordingly the applicants’ arrest and continued detention had not been compatible
with Article 5 of the Convention.
Violation of Article 11 (freedom of assembly and association)
The Court reiterated that the authorities had a duty to take appropriate measures with regard to
lawful demonstrations to ensure their peaceful conduct and the safety of all citizens. In this case it
appeared that the only measure that had in fact been taken vis-à-vis the applicants and other
demonstrators had been to prevent them outright from travelling to Ankara, a measure which the
Court regarded as disproportionate and unnecessary for the prevention of disorder and the
protection of the rights of others (the legitimate aims pursued by the authorities).
PROVISIONS
Article 5
Article 11
PRINCIPAL FACTS
The applicants, 22 Turkish nationals, were members of the Eğitim-Sen trade union (Eğitim ve Bilim
Emekçiler Sendikası – the Education and Science Workers’ Union) living in Adana, Turkey.
The applicants explained that on the night of 27 March 2012 they had taken a bus to Ankara to
participate in a demonstration organised by trade unions against a bill being debated in Parliament
to amend the law on public-sector trade unions and reform the general education system by introducing four years of primary school, four years of lower-secondary school and four years of upper-secondary school. On the motorway leaving Adana their bus was stopped by police officers who advised them that, by Order No. 6136 of 26 March 2012 of the Ankara Prefecture, all the
demonstrations scheduled to take place in the capital on 28 and 29 March 2012 had been disallowed
for reasons of security and public order. The officers asked them to return home.
On refusing to return home or identify themselves the applicants were conveyed by the officers to
the police station to have their identities ascertained and their statements taken. The applicants,
who had been arrested at 11.45 p.m. on 27 March 2012, were released around 2.50 p.m. the next day.
On various subsequent dates they received administrative fines of about 28 euros (at the time) for
having refused to disclose their identities. The applicants unsuccessfully contested the fines.
Relying on Article 5 (right to liberty and security) of the Convention, the applicants argued that their
detention on 28 March 2012 had been without any legal basis.
Relying on Article 11 (freedom of assembly and association) of the Convention, they complained of a
violation of their right to hold a peaceful demonstration.
THE DECISION OF THE COURT…
Article 5
The Court noted that, although the applicants had been taken to the police station to be identified,
which did constitute an obligation within the meaning of Article 5 of the Convention, it was apparent
from the first police report as well as the Government’s submissions that the main reason for
arresting and detaining the applicants had been to prevent them from travelling to Ankara and thus
from participating in the demonstrations which had been declared unlawful.
The Court observed that the applicants had not been released until 2.50 p.m., whereas their
identities had been determined by 4.50 a.m. Even on the assumption that the security forces had
taken them to the police station because they had refused to disclose their identities and for the
purpose of writing up the administrative fines, there had been nothing to warrant holding them
after 4.50 a.m., when the relevant police report was made, by which time their identities had been
determined. Thus the continued detention of the applicants after their identities had been
established made clear that the true aim had been to prevent them from going to Ankara to
participate in the demonstration. In any event their detention had ceased to be warranted to secure
fulfilment of their obligation to identify themselves and thus no longer fell within Article 5 § 1 (b) of
the Convention.
Furthermore the police had advised the applicants that all the demonstrations scheduled to take place
in the capital on 28 and 29 March 2012 had been disallowed for reasons of security and public order
and had told them to return home, a course of action which presupposed a suspicion that the
applicants would disrupt security and public order if they demonstrated as planned. However, the
authorities had not shown convincingly that the applicants would in all likelihood have participated
in the commission of a concrete and specific offence had they not been prevented from doing so by
arrest or detention for an identity check or other purpose.
The Court also observed that the material in the case files did not show that all the conditions had
been met for arresting and detaining the applicants in order to compel them to fulfil a concrete and
specific obligation already incumbent on them which they had until then failed to satisfy. Even on
the assumption that the interference with their right to liberty under Article 5 of the Convention had
been lawful under national law, an arrest would be acceptable only where fulfilment of an
“obligation prescribed by law” could not be secured by milder means. The Court further held that
the principle of proportionality required a balance to be struck between the need in a democratic
society to secure the immediate fulfilment of the obligation in question and the importance of the
right to liberty.
Accordingly, the applicants’ arrest and continued detention had not been compatible with Article 5
of the Convention. There had therefore been a violation of Article 5.
Article 11
The Court found that the authorities’ true motive, and moreover the outcome, had been to prevent
the applicants from travelling to Ankara to participate in the demonstration. It observed that the
actions of the public authorities had therefore amounted to an interference with their right to
freedom of assembly. The Court noted that the interference had been prescribed by a prefectoral
order, although in its view considerable doubt arose as to the foreseeability and quality of the “law”,
represented by the order, for the purposes of Article 11 of the Convention. The Court also observed
that the interference had pursued the legitimate aims of prevention of disorder and protection of
the rights of others.
As to whether the interference at issue had been necessary in a democratic society, the Court
reiterated that any demonstration in a public place might cause some disruption to ordinary life, a fact
which did not in itself justify interference with the exercise of the right to freedom of assembly,
since the public authorities could be expected to exercise some tolerance. It also reiterated that the
authorities had a duty to take appropriate measures with regard to lawful demonstrations to ensure
their peaceful conduct and the safety of all citizens. Yet in this case it appeared that the only
measure which had in fact been taken vis-à-vis the applicants and other demonstrators had been to
prevent them outright from travelling to Ankara, a measure the Court regarded as disproportionate
and unnecessary for the prevention of disorder and the protection of the rights of others. There had
therefore been a violation of Article 11 of the Convention.
Just satisfaction (Article 41)
As the applicants had not lodged their claims for just satisfaction within the time allowed, the Court
determined that no award should be made under that head.
