Individual Application 4/20
Press Release concerning the Judgment Finding a Violation of the Prohibition of Treatment Incompatible with Human Dignity in the Case where the Police Used Tear Gas against Demonstrators
On 10 December 2019, the First Section of the Constitutional Court found violations of the prohibition of treatment incompatible with human dignity and of the right to hold meetings and demonstration marches safeguarded respectively by Articles 17 and 34 of the Constitution in the individual application lodged by Betül Öztürk Gülhan and Sıla Koç (no. 2016/12937).
The applicants attending a demonstration which was held at Güvenpark, Ankara in 2014 in order to protest the Soma mine accident were injured as a result of the police intervention. They went to a hospital for being subject to tear gas and obtained a medical report. Upon the applicants’ criminal complaint, an investigation was initiated against the law enforcement officers involved in the incident by the incumbent chief public prosecutor’s office (“the prosecutor’s office”), which finally issued a decision of non-prosecution. The applicants’ challenge against the decision of non-prosecution was dismissed by the magistrate judge.
The Applicants’ Allegations
The applicants maintained that the prohibition of treatment incompatible with human dignity and the right to hold meetings and demonstration marches had been violated due to the decision of non-prosecution issued at the end of the investigation against the police officers who had intervened in the demonstration in question.
The Court’s Assessment
1. Alleged Violation of the Prohibition of Treatment Incompatible with Human Dignity
The applicants alleged that the police officers’ intervention in the demonstration which they had attended to protest the Soma mine accident by use of tear gas at a distance of approximately one meter, in the absence of any act on the part of them impairing the peaceful nature of the demonstration, had been in breach of the prohibition of treatment incompatible with human dignity.
The medical reports and the 8-second video footage of the incident, which were submitted by the applicants, reveal that their complaints are arguable claims which would require an investigation. Therefore, it must be assessed whether the police intervention was necessary and proportionate.
At the end of the investigation conducted into the incident, it was found established that the applicants had been injured on account of the police intervention; however, a decision of non-prosecution was rendered due to the lack of legal grounds constituting the offence of exceeding the permissible limits of the right to use force.
It appears from the 8-second video footage within the CD submitted by the applicants that they were injured at Güvenpark. Neither the administrative nor the judicial authorities could demonstrate the necessity of the police intervention in the demonstrators who had gathered at Güvenpark. Besides, an investigation was not initiated against the applicants for contravening the Law on Meetings and Demonstration Marches. For these reasons, the substantive aspect of the prohibition of treatment incompatible with human dignity was violated in the present case.
During the investigation, the prosecutor’s office conducted inquiry into certain issues but failed to investigate whether the riot control vehicles and the other police vehicles had taken video footage, and whether the press had had any image, of the incident. Moreover, the prosecutor’s office did not also make an inquiry into the inability to obtain any video footage from 6 out of 7 security cameras at Güvenpark. This lack of diligence in the conduct of the investigation led the applicants to have doubt as to the impartiality and independence of the investigation. No sufficient diligence and endeavour were shown to identify the police officers who had sprayed the applicants with tear gas. Besides, reliance merely on the incident scene investigation report in issuance of the decision of non-prosecution constituted a breach of the principle of impartial and independent investigation.
The decision of non-prosecution was rendered on the basis of the presumption that all of the demonstrators at different locations had committed violent acts of the same level and thereby impaired the peaceful nature of the demonstration; but the particular situations of the applicants were not taken into consideration. The prosecutor’s office interpreted, to the applicants’ detriment, the failure to completely obtain the camera footages -which the public authorities were obliged to obtain and secure- and relied on this failure in rendering the decision of non-prosecution, which has not been found reasonable by the Court. The necessary steps to clarify the incident were not fully taken, and the investigation was not conducted with due diligence, by the investigation authority.
Consequently, the Court has found a violation of the prohibition of treatment incompatible with human dignity safeguarded by Article 17 of the Constitution.
2. Alleged Violation of the Right to Hold Meetings and Demonstration Marches
The Court has examined whether the police intervention in the applicants in the present case was compatible with the requirements of a democratic society.
As the exercise of no right and freedom can be considered to be absolute, the right to hold meetings and demonstration marches is also undoubtedly subject to restrictions for the purposes of preventing the abuse of the right and maintaining public order. However, any interference with the right to hold meetings and demonstration marches, which is a different aspect of the collective exercise of the freedom of expression by individuals, must not infringe the individuals’ fundamental rights and freedoms by turning into a means that enables public authorities to exert pressure.
In a pluralist democratic system, it must be considered natural that the non-governmental organizations and several sections of the society gathered to protest the accident, which took place in a mine operated in Soma by a private company and resulted in the death of 301 miners and injury of many others, one day after the accident when it was still at the top of the country’s agenda. Although the demonstrations held in public areas disturb the usual flow of daily life to a certain extent, in such cases the public authorities should show more tolerance and the law enforcement officers should act in a more meticulous and professional manner.
According to the information included in the records and the police report, the demonstrators were dispersed by the police officers by use of force as there were attacks against the police officers by demonstrators at some locations outside Güvenpark -where the applicants had gathered-, which impaired the peaceful nature of the meeting. In the absence of any video footage demonstrating that the demonstrators having gathered within Güvenpark had attacked the police officers, public buildings or private homes and workplaces, the applicants’ demonstration was ended by use of tear gas, high-pressure water and sweeping method.
Nor is there any finding in the case file to the effect that the applicants impaired the peaceful nature of the meeting. The administration also failed to demonstrate that the applicants’ acts led to the disturbance of the public order or caused such a risk.
Consequently, the Court has found a violation of the right to hold meetings and demonstration marches safeguarded by Article 34 of the Constitution.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.