The intervention of the police authorities to deter protesters who created riots for the protection of Parliament did not violate freedom of assembly. This right only protects peaceful gatherings
Varoğlu Atik and others v. Turkey 14.01.2020 (no. 76061/14)
Freedom of assembly and the limits of state intervention.
The applicants had planned a peaceful demonstration, obtaining the approval of the police authorities, which they carried out. At the end of the demonstration, some demonstrators used force police against police officers, who were preventing them from entering the Parliament. The domestic courts imposed an administrative fine with a grace period.
The Court pointed out that Article 11 of the Convention only protects the right to freedom of “peaceful assembly” and any State interference is contrary to the above article unless provided by law, and is justified in a democratic society.
In the present case, the Court noted that the applicants before the domestic courts did not deny the existence of violence against the police in order to be able to enter Parliament, but challenged the actual extent of the violence. Given that the police were responsible for ensuring the security of Parliament and for the protection of citizens in general, and since the sentence imposed was extremely lenient, the ECtHR concluded that intervention was necessary in a democratic society and found no violation of the right. (Article 11).
The applicants, İlkşen Varoğlu Atik, Hasan Belen and Burak Maviş, were born in 1969, 1973 and 1980
respectively. They live in Nicosia, in the “Turkish Republic of Northern Cyprus” (the “TRNC”).
The case concerned the suspended fine imposed on the applicants for an assault, committed during
a demonstration on a public highway, against police officers who were blocking their access to the
Parliament of the “TRNC”. The events took place in 2009.
The applicants relied, in particular, on Article 11 (right to freedom of assembly).
THE DECISION OF THE COURT…
The Court noted that Article 11 of the Convention only protects the right to freedom of peaceful assembly.
In this case, the Court noted that the applicants participated in an approved peaceful demonstration. Then, at the end of the demonstration, the applicants, with a group of demonstrators, committed violent physical acts against the police, although the organizers did not call for violence or disturbance. As to the fact that the applicants were physically assaulted at the police station, the file does not contain any concrete evidence of the alleged incident.
Consequently, in the light of the foregoing considerations and insofar as there is a continuity between the initial manifestation and the violent acts committed at the end of it, the Court considers that the applicants’ conviction constitutes an interference by the public authorities in the exercise of their right to peaceful assembly.
Such interference is contrary to Article 11 of the Convention, unless it is “provided by law”, has one or more legitimate aims referred to in paragraph 2 of this provision and is “indispensable in a democratic society”. It is not disputed by the parties that the interference provided by law, in particular Article 224 (b) of the Criminal Code, with regard to the offense of assault against a police officer in the performance of his duties.
The Court first recalls that it is clear from the observations of the parties and from the documents submitted that the national action day organized by the various trade unions on 28 October 2009 was the subject of a prior statement to the police. Consequently, it considers that there is no doubt that the police authorities expressly and orally gave their prior consent to the demonstration on 28 October 2009. It follows that the organizers and candidates – as participants in the demonstration – had a prior peace of mind.
In that regard, when the ECtHR examines whether an intervention was ‘necessary in a democratic society’ to achieve a legitimate aim, it recognizes that national authorities have a certain margin of appreciation in choosing instruments which will be capable of achieving the legitimate aim but emphasizes that this margin of appreciation is in line with European scrutiny both in the law and in the decisions that apply it.
In the present case, the Court notes that the findings of fact made by the competent national courts and finally by the Supreme Court show that the course of the demonstration was determined by mutual agreement between the organizers and the police authorities responsible for the investigation. of the demonstration and the security of the citizens.
The Court noted that the Supreme Court had also found that the demonstration of 28 October 2009 took place peacefully from 9:30 am. to 12:30 pm, at the designated premises and without any intervention by the competent police authorities. The Supreme Court noted that the peaceful demonstration had taken the predetermined route and ended and that at that time some demonstrators had used violence to bypass the police brigade and enter Parliament. In this context, the Court noted that the applicants did not deny the existence of violence against the police in order to enter the Parliament, but that they disputed the actual extent of that violence.
The Court notes that from the documents in the case-file, in particular the reasons put forward by the Supreme Court, the national authorities were quite patient in view of the applicants’ violent conduct. In the present case, with regard to the applicant’s argument that the national court’s incorrect application of the domestic law of Parliament’s protective role by the police is incorrect, the Court recalls that its power to monitor compliance with national law is limited. It is primarily the responsibility of the national authorities, including the courts, to interpret and apply domestic law. Even if the applicants dispute this, the Court noted that the police were responsible for protecting the Parliament, in particular by blocking the road in front of the building to prevent the demonstrators from entering by force. In this regard, the Supreme Court stated in the reasoning of its ruling that the police were responsible for ensuring the Parliament’s security. This included the possibility of a smooth parliamentary debate.
Finally, the Court noted that the applicants had not been sentenced to imprisonment, as provided for in Article 224 (b) of the Criminal Code, but to a more lenient sentence, namely a simple fine, accompanied by a sentence of one year ending on 22 December 2012. Considers that the applicants’ conviction of such a fine can reasonably be considered to satisfy a ‘pressing social need’. In addition, the national courts based their judgments on an acceptable assessment of the facts and on relevant and sufficient grounds. Consequently, they did not exceed their discretion in the matter.
Consequently, the intervention was necessary “in a democratic society” within the meaning of Article 11 of the Convention. Non-infringement of the right of assembly.