Ali Rıza Özer Başvurusu
Ali Rıza Özer and Others, Application No: 2013/3924, 6 January 2015
Applicants Özcan Çetin, Orhan Bayram, Veli İmrak, Tunay Özaydın and Deniz Doğan (teacher) and Ali Rıza Özer (education inspector) are members of Eğitim-Sen (Education and Science Workers’ Union) İzmir Branch. KESK (Confederation of Public Workers’ Unions) and Eğitim-Sen announced they would make a joint press declaration on 28-29 March 2012 in Ankara and protest the “Bill Amending the Elementary School and Education Law and Various Other Laws” (known as “4+4+4 Bill”) in order to raise awareness on their objections to this bill. Thereupon, the Governor of Ankara announced that demonstrations will not be allowed and the Ministry of the Interior sent a letter to governors of all provinces to prevent groups coming to Ankara for this demonstration. The Governor of İzmir informed Eğitim-Sen İzmir Branch of this situation. A group of people including the applicants were stopped by the police around 22:00 o’clock on 27 March 2012. As a response to this treatment, the group first blocked the traffic and then began to march. The police responded with the use of nightstick and pepper spray. On the following day, a wider crowd including the applicants attempted to march to the governorship building, and a clash between police and the protesters occurred. Afterwards the group was allowed to make a public statement and itself ended the protest. As a result of their actions in the two protest demonstrations, Ali Rıza Özer, Özcan Çetin and Orhan Bayram were given statements against the accusation of acting against the Law numbered 2911 and of hindering public service. The applicants were injured and exposed to pepper spray during the police intervention in the second protest.
B) Judgment and Reasoning of the Court
In the relevant part of the application concerning Article 34 of the Constitution regulating right to hold meetings and demonstration marches, the Constitutional Court summarized the purview of this right as maintaining the opportunity of individuals to collectively defend their ideas and raise their voices. The Court stated that the purpose of an assembly or demonstration does not matter in order for it to be protected under the scope of this right, and emphasized that the peaceful nature of an assembly or demonstration would be sufficient for the protection to be provided. It highlighted that the purpose of Article 34 of the Constitution is not only to protect the freedom of assembly but also to require the prevention of unlawful restrictions on that freedom, and then listed the positive obligations of the state to ensure the effective use of this right. The Court stressed that the peacefulness of the demonstration should be assessed based on the general characteristics of the demonstration and stated that the exceptional and individual nature of the violence did not legitimize the police intervention exposed against the entire group. Furthermore, the Court asserted that unlawfulness does not, by itself, eliminate the peaceful nature of an assembly or demonstration and that the disruptive effects of a demonstration on the course of daily life or presence of negative public reaction also do not justify any violation against the right to assemble. With regard to the application, the Court recognized that the police intervention was in compliance with the law and carried a legitimate purpose and therefore evaluated whether it was necessary in a democratic society and proportional. Then it highlighted that the police did not warn the protesters before the use of
pepper spray or water cannon. Although the applicants were exposed to a considerably moderate pepper spray and no serious injury was caused, the Court still found a violation against the applicants’ right to freedom of assembly.
C) Significance of the Judgement
The Constitutional Court pointed out the close relationship between freedom of assembly protected under Article 34 of the Constitution and freedom of expression protected under Article 25 and 26. In this leading judgment on freedom of assembly and demonstration marches, the Court sets forth the principles for the protection of this freedom and on this regard, it is much referred to in its case-law.