Features of the Freedom of Assembly and Association within the framework of the decisions of the European Court of Human Rights

ABSTRACT
In this paper, I tried to explain the freedom of association and assembly, which is the Article 11 of the European convention on Human Rights. In doing so, I tried to determine the characteristics of the right through precedent cases. I chose the precedent cases from among cases which Turkey is a side of. The reason why I chose Turkey is; Turkey is the country with most decisions regarding violation of freedom of association and assembly in the judgments of the European Court of Human Rights.

Freedom of Association
Brief Explanation Regarding The Term Of “Association” And Subjects Of This Right/ Tüm Haber Sen and Çınar v. Turkey

Freedom of association can be defined as the freedom of individuals to come together by forming a collective organization that represents them to protect their own interests. An important issue that comes up with the freedom of association is the scope of the concept of “association”.

The word “association” can be defined as “a group of people who come together for a common purpose, established with the free will of the people” with reference to the decisions of the European Court of Human Rights.

As we see in the Joint Guidelines On Freedom Of Association: ”In other words, an association is an organized, independent, not-for-profit body based on the voluntary grouping of persons with a common interest, activity or purpose”. (OSCE/ODIHR,2015)

There are many norms in international law regarding freedom of association. Within the framework of the limits of this study, reference will be made to the standards that emerge within the scope of the ECHR. The leading essential regulation in this area is Article 11 of the ECHR. According to this article, “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.” As can be seen, the article guarantees both freedom of assembly and freedom of association.

Freedom of association primarily covers the right to form association and become of a member of the association. Associations also have the freedom not to accept to everyone as a member.

According to Article 11 of the ECHR, the subject of freedom of association is everyone. Whether a person is a citizen of a country or not or stateless, being a natural person or legal entity is not important in terms of whether or not he is the subject of the right.

In other words Article 11(1) of the ECHR guarantees freedom of association to ‘anyone’. This entails individuals – including children – but also legal persons that are ‘within jurisdiction’ of a contracting state. (Golubovic, 2013)

Another statement about the subject of this right is that “the rights to freedom of peaceful assembly and of association are guaranteed to everyone without distinction”. (Kiai,2014)

An association does not have to have legal personality, but does need some institutional form or structure.(OSCE/ODIHR,2015) An association that is the subject of freedom of association should not, as a rule, be a public legal person. However, an association does not necessarily have to be a private legal entity to enjoy the freedom of association. Whether an “association” carries legal personality may be important in determining whether it can benefit from the protection of the right.

However, the fact that an “association” does not have a legal personality does not take it out of the protection area of the freedom of association. Even in case of being informal continuous clusterings that devoted to a specific aim, fall within the scope of freedom of association as well.

Case Study: ECtHR/Tüm Haber Sen and Çınar v. Turkey – 28602/95 Judgment 21.2.2006
Facts (briefly): “In 1992 Tüm Haber Sen was founded by 851 public-sector contract staff. Its constitution provided among other things for the right to enter into collective agreements. A few days later, the Istanbul Governor’s Office called upon the appropriate prosecutor to seek the suspension of activity and dissolution of Tüm Haber Sen on the ground that civil servants were not entitled to form trade unions.

(…) The representatives of Tüm Haber Sen appealed on points of law and the Court of Cassation, at a plenary sitting of the civil divisions, ordered at last instance the dissolution of the applicant organisation on the ground that, in the absence of any statutory provisions of Turkish law governing the legal status of trade unions for civil servants and public-sector contract workers, the applicant trade union could not claim to have any legal basis. Nor could it be regarded as a professional association or organisation because it had been explicitly presented by its leaders as a trade union in its own right.

(…)On 8 June 1995, a few days after notice of the judgment had been served to the representatives of Tüm Haber Sen, all the branches and divisions of the union were dissolved by order of the Ministry of the Interior.” (Tüm Haber Sen and Çınar v. Turkey’, 2006)

Law: “Article 11 – Whilst this provision presented trade-union freedom as one form or particular aspect of freedom of association, it did not provide trade unions or their members with a guarantee of specific treatment by the State and left to the State the choice of the means to be utilised so that their right to be heard would be upheld. (..) It accordingly appeared that Tüm Haber Sen had been dissolved solely on the ground that it had been founded by civil servants and its members were civil servants. (..)As to its necessity, the Court reiterated that the exceptions set out in Article 11 had to be construed strictly and only convincing and compelling reasons could justify restrictions on freedom of association.

In the present case, however, the Government had failed to provide any explanation as to how the absolute prohibition on forming trade unions, imposed at the time by Turkish law on civil servants and public-sector contract workers, had met a “pressing social need”. (..) Accordingly, in the absence of any concrete evidence to show that the formation or activities of Tüm Haber Sen had represented a threat to Turkish society or the Turkish State, it could not be said that the statutory prohibition was sufficient in itself to ensure that the union’s dissolution satisfied the conditions in which freedom of association might be restricted. The respondent State had thus failed to comply, at the material time, with its positive obligation to secure enjoyment of the rights protected under Article 11.”(‘Tüm Haber Sen and Çınar v. Turkey’, 2006)

Conclusion: violation (unanimously)(HUDOC database legal summary)

Assessment Of This Decision And Inferences About The Subject Of The Right:

Article 11 states that “This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” From this statement, it emerges that the right of association for members of the armed forces, of the police or of the administration of the State can be restricted. Even this does not mean that the people counted are not the subjects of the right, only that states are given a wider discretion in this regard. The regulation in question doesn’t give carte blanche for limitation.

Therefore, it does not seem possible to impose a total limitation on the specified profession groups. It should not be forgotten that the legal framework should be designed to ensure the enjoyment of the right to freedom of association and its implementation, and not to stifle the exercise of this right. (OSCE/ODIHR,2015) The subject of this right can be everyone, as mentioned earlier.

Apart from this, it is possible to find other restriction decisions regarding the establishment of associations of the members of the occupational group. In recent years some categories of the public officials have tended to form their own associations. Thus YARSAV (acronym for ‘Union of Judges and Prosecutors’) and Democrat Justice Association are two examples recently set up by judges and prosecutors in justice sector. Even though there is no concrete legal and/or administrative provision prohibiting membership in this kind of association, the government has stated that it is inappropriate for judges and prosecutors to set up such associations since membership in them may violate their impartiality. (Oing Conf/Exp, 2011) (Moura, 2011)

The Linkage With The Other Rights

The right to freedom of association is interrelated with other human rights and freedoms, such as the rights to freedom of expression and opinion, freedom of assembly and freedom of thought, conscience and religion. (OSCE/ODIHR,2015)

Freedom of association is a right closely related to freedom of expression. At this point, freedom of expression can be accepted as general provision and freedom of association as private provision. It has been accepted that freedom of expression, which is a general provision, forms the basis for the full enjoyment of other human rights and is an integral part of freedom of assembly and organization.

Having regard to the fact that the principle of pluralism cannot be put into practice if an organization cannot express its aims and opinions freely, the ECtHR acknowledges that it is one of the main objectives of the freedom of association to protect views and freedom of expression in the meaning of Article 10 of the Convention. This close linkage between the listed liberties results in the fact that a study on freedom of association and assembly necessarily includes other freedoms to a certain extent.

Another freedom that can come into question within the freedom of association is the freedom of religion or belief regulated in Article 9 of the ECHR. The subject may come up, especially in the context of the freedom of association of religious organizations.

For this reason, the question of which one should be evaluated within the scope of freedom of religion or belief and freedom of association should be answered. Religious organizations are not generally a matter within the scope of freedom of association, but of freedom of religion or belief.

The Purpose of Organizing

Within the framework of freedom of association, people can come together for various purposes and there are no restrictions on the purpose of getting together. The expression “to protect his interests” in Article 11 of the ECHR points to this situation. The purpose of organizing is not decisive in terms of enjoying freedom of association. It is possible to establish an “association” for political, professional, sports, ethnic, religious, linguistic, cultural, social,or charity purposes.

Freedom of association should be used in a way that does not include incentives or calls for violence and within the framework of activities compatible with the principles of democracy and human rights stipulated by the ECHR. It is also a part of the freedom of association for associations to operate on subjects other than their establishment goals. The ECtHR is also of the opinion that an organization’s activities are not compulsory to be similar to its charter or program. (ECtHR, Stankov and the United Macedonian Organisation Ilinden/Bulgaria)

For Turkey, according to the law, an association is a legal entity which may be set up by seven or more natural persons with capacity to act in order to achieve an aim that is not contrary to the law. However, no association shall be set up for sharing any profit. In other words an association in Turkey can not seek any material gain for its members. (Oing Conf/Exp, 2011)(Moura, 2011)

Forms of Association/ Chamber Judgment Enerji Yapi-Yol Sen V. Turkey, Chamber Judgment Demir And Baykara V. Turkey, The United Communist Party of Turkey and Others/Turkey

In this point I would like to add Sajò’s classification. According to Sajò: ”The concept of association encompasses an extremely broad spectrum of social relationships in which individuals act in concert on the basis of some at least minimal institutional consolidation. The social areas and the social functions of associations diverge considerably. In a rough classification, one can distinguish (1) associations in the field of economic and labour relations (associations of employers, employees, professions, producers, consumers, economic lobbying groups); (2) associations in the field of charities and analogous non-profit welfare institutions; (3) associations in the field of sports, leisure, and entertainment; (4) associations in the field of religion, culture, art, and science; (5) non- partisan political associations and advocacy groups; and (6) private social clubs.” (Sajò, 2012)

The diversity put forward in terms of purpose in the freedom of association is also valid in terms of the forms of association. Although no special form has been determined at the point of exercising this right, certain forms of organization stand out in practice. Among these, political parties, non-governmental organizations, religious organizations, trade unions are prominent forms of association. However, although it does not have a legal personality like the organizations mentioned, any organization where more than one person voluntarily come together to realize a specific purpose is the subject of the freedom of association.

I would like to handle trade unions and political parties mostly in this part. Union trades and political parties are the most representative, among forms of association.

In this sense trade unions are one of the main uses of freedom of association and are undoubtedly subjects of this freedom. Article 11 of the ECHR regulates that trade unions are clearly protected by this article. The right to union is an organization in which employees come together freely to protect their individual or common interests, not as an independently, but as a form or special aspect of freedom of association. This right includes the right to form a union and the right to join and leave the union. Membership of the union should be left to the will of the person and it is possible for the person to choose from the multiple unions they want and to become a member of the union they have chosen. It has been accepted that being forced to become a member of a particular union would undermine the essence of freedom of association. Another freedoms that should be mentioned within the scope of the union right are the right to strike and right to collective bargaining. This right, which is not included in Article 11 of the ECHR, has gradually started to come to the agenda with the decisions of the ECtHR. Strikes and collective bargaining rights can be regulated in the Constitution of the countries, and these rights should be accepted as part of the right to union and freedom of association.

Case Study: ECtHR, Enerji Yapı-Yol Sen/Turkey, Appl. No: 68959/01, 21.04.2009.

Facts (briefly): “Enerji Yapı-Yol Sen is a union of civil servants which was founded in 1992 and is active in the fields of land registration, energy, infrastructure services and motorway construction. It is based in Ankara and is a member of the Federation of Public-Sector Trade Unions. On 13 April 1996 the Prime Minister’s Public-Service Staff Directorate published circular no. 1996/21, which, inter alia, prohibited public-sector employees from taking part in a national one-day strike organised in connection with events planned by the Federation of Public-Sector Trade Unions to secure the right to a collective-bargaining agreement. On 18 April 1996 some of the trade union’s board members took part in the strike and received disciplinary sanctions as a result.”( Enerji Yapı-Yol Sen/Turkey, 2009)

Law: “(..)The Court acknowledged that the right to strike was not absolute and could be subject to certain conditions and restrictions. However, while certain categories of civil servants could be prohibited from taking strike action, the ban did not extend to all public servants or to employees of State-run commercial or industrial concerns. In this particular case the circular had been drafted in general terms, completely depriving all public servants of the right to take strike action. (..)Furthermore, Turkish Government had failed to justify the need for the impugned restriction in a democratic society.

The Court found that the adoption and application of the circular did not answer a “pressing social need” and that there had been disproportionate interference with the applicant union’s rights. There had therefore been a violation of Article 11.”( Enerji Yapı-Yol Sen/Turkey, 2009)

Conclusion: violation

Case Study: ECtHR/Demir and Baykara v. Turkey, Appl. No: 34503/97, 21.11.2006

Facts (briefly): “The case concerned a finding by the Court of Cassation that Tüm Bel Sen had no separate legal personality and the consequent cancellation of a collective bargaining agreement it had entered into with the Gaziantep Town Council. (..) In 1993 it entered into a collective bargaining agreement with Gaziantep Town Council regulating all aspects of working conditions at the council, including salaries, benefits and welfare services. It later sued the council on the ground that it had defaulted on its obligations, in particular, those of a financial nature. It won the case at first instance. However, on 6 December 1995 the Court of Cassation ruled that at the time Tum Bel Sen was founded, Turkish law did not permit civil servants to form unions and that it could not rely on the relevant international treaties as they were not yet applicable by Turkish law. It therefore concluded that Tum Bel Sen did not have legal personality or the capacity to enter into a collective bargaining agreement.”( Demir and Baykara v. Turkey, 2008)

Law: “The Court noted that the collective bargaining agreement between the union and the town council was the principal or even the only means by which the union could promote and defend the interests of its members. Accordingly, the cancellation of that agreement, which had been in effect for two years, constituted interference with the applicants’ freedom of association.
Regarding the right to form a union in the absence of any concrete evidence to show that Tüm Bel Sen’s activities constituted a threat to society or the State, the Court held that the refusal to accord it legal personality violated Turkey’s obligations under Article 11.” (Demir and Baykara v. Turkey, 2008)

Conclusion: violation(unanimously)*( Press release issued by the Registrar)

Assessment Of These Decisions And Inferences About The Forms Of The Right:

As a part of the right to union, the right to strike is one of the most important ways unions can use to protect the interests of their members. Collective actions other than strikes are protected by the ECtHR within the scope of freedom of assembly, and therefore there is a risk that their ban will result in a violation of freedom of assembly. Such general prohibitions on the right to strike were also seen as a violation of the right to freedom of association. Another right within the scope of the union right is the right to collective bargaining. As we can see in the judgment Demir and Baykara V. Turkey, like the right to strike, the right to collective bargaining is not clearly regulated in Article 11 of the ECHR; however, the right to collective bargaining agreement and ECtHR decisions has been accepted as an integral part of the freedom of association for both laborers and public officials.

Another form is political parties. Turkey has been the subject of some remarkable cases regarding political parties which another form of freedom of association. Therefore political parties should be especially focused on.

Case Study: ECtHR/ The United Communist Party of Turkey and Others v. Turkey, Appl. No: 19392/92, 30.01.1998

Facts (briefly): The United Communist Party of Turkey (“the TBKP”), the first applicant, was a political party that was dissolved by the Constitutional Court. (..)The TBKP was formed on 4 June 1990. On the same day, its constitution and programme were submitted to the office of Principal State Counsel at the Court of Cassation for assessment of their compatibility with the Constitution and Law no. 2820 on the regulation of political parties. (..) In Turkey there were no “minorities” or “national minorities”, other than those referred to in the Treaty of Lausanne and the friendship treaty between Turkey and Bulgaria, and there were no constitutional or legislative provisions allowing distinctions to be made between citizens. Like all nationals of foreign descent, nationals of Kurdish origin could express their identity, but the Constitution and the law precluded them from forming a nation or a minority distinct from the Turkish nation. Consequently, objectives which, like those of the TBKP, encouraged separatism and the division of the Turkish nation were unacceptable and justified dissolving the party concerned.( The United Communist Party of Turkey and Others v. Turkey, 1998)

Law: “The applicants maintained that the fact that the United Communist Party of Turkey (“the TBKP”) had been dissolved and its leaders banned from holding similar office in any other political party had infringed their right to freedom of association, as guaranteed by Article 11 of the Convention, which provides:
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”

The Court considers that the wording of Article 11 provides an initial indication as to whether political parties may rely on that provision. It notes that although Article 11 refers to “freedom of association with others, including the right to form (..) trade unions ”, the conjunction “including” clearly shows that trade unions are but one example among others of the form in which the right to freedom of association may be exercised. It is therefore not possible to conclude, as the Government did, that by referring to trade unions – for reasons related mainly to issues that were current at the time – those who drafted the Convention intended to exclude political parties from the scope of Article 11. (..)However, even more persuasive than the wording of Article 11, in the Court’s view, is the fact that political parties are a form of association essential to the proper functioning of democracy. In view of the importance of democracy in the Convention system (see paragraph 45 below), there can be no doubt that political parties come within the scope of Article 11.

(..)Before the Commission, the Government also submitted, in the alternative, that while Article 11 guaranteed freedom to form an association, it did not on that account prevent one from being dissolved. The Commission took the view that freedom of association not only concerned the right to form a political party but also guaranteed the right of such a party, once formed, to carry on its political activities freely.”( The United Communist Party of Turkey and Others v. Turkey, 1998)

Conclusion: violation(unanimously)

Assessment Of This Decision And Inferences:

One of the main forms of organization emerging within the scope of freedom of association is political parties. A clear regulation on political parties is not covered by the ECHR. It is accepted that the ECtHR case law and political parties may also be the subjects of freedom of association. The ECtHR states that political parties are of great importance for the proper functioning of democracy. Political parties are legal structures in which citizens united around certain political thoughts freely set up and participate freely. It is the natural result of the function that they assume in democratic political life, that political parties bring different solutions to the problems of the country that they emphasize. For this reason, political parties are under the protection of Articles 10 and 11 of the European Convention on Human Rights on “freedom of association”, “freedom of expression”.

As we can see in this judgment, the ECtHR consider the political parties are under guarantee of Article 11. Therefore violation is came to the conclusion.

Freedom of Assembly
Definition and Subjects of Right

Freedom of assembly is a special form of freedom of expression. The right to assembly and demonstrations guarantees the emergence, protection and dissemination of different ideas that are essential in the development of pluralist democracies. This freedom is protected under Article 20 of the Universal Declaration of Human Rights, Article 21 of the International Covenant on Civil and Political Rights and Article 11 of the ECHR.

The subject of freedom of assembly is everyone, like all other freedoms. In terms of freedom of assembly, it is not important whether the person who will benefit from this freedom is a citizen or a foreigner or a legal entity or not.

An assembly is primarily characterized by physical presence of multitude of individuals who are aligned by a common purpose to collectively communicate a cause to the general public. What made the collective expression of concern possible in the first place is physical gathering of many individuals with a shared interest. ( Rosenfeld, 2012)(Gelaye, 2017)

The Link with Other Rights and Freedoms
Freedom of assembly includes some situations in which freedom of expression is used collectively and constitutes one of the ways of expressing thought. The fact that it is closely related to the freedom of expression raises the question of the scope of freedom of a particular meeting in some cases. While a demonstration made by one or more people in a public place is seen within the scope of freedom of expression, this type of behavior is evaluated within the framework of freedom of assembly if it is carried out in a more crowded form of assembly and demonstrations.
Another right that comes to the fore with freedom of assembly is the prohibition of torture and ill-treatment. Even if the restriction brought to an assembly is in accordance with the law, the way that the restriction is applied may result in a violation of freedom of assembly. Intervention in an assembly that is legally restricted by law enforcement in a behavior that can be considered as a violation of the prohibition of torture and ill-treatment may also lead to a violation of freedom of assembly.

Forms and Aim of Assembly / Djavit An. V. Turkey

The content of the concept of freedom of assembly is quite wide and it protects all kinds of gatherings such as protest, press release, sit-in exc. The width that arises in terms of the form of the meeting is also valid for the purpose of the meeting. A meeting can be held for any political, religious, cultural, social purpose, and there is no content limitation at this point.

Case Study: ECtHR/ Djavit An. V.Turkey, Appl. No: 20652/92, 20.02.2003

Facts (briefly): “Ahmet Djavit An, a Cypriot national of Turkish origin born in 1950, is a paediatrician living in Nicosia, north of the “green line”. (..)The applicant is normally unable to obtain a permit from the Turkish and Turkish Cypriot authorities to visit the “buffer zone” or the southern part of the island in order to participate in various of these bi-communal meetings. (..)On 18 May 1994 the “TRNC” Directorate of Consular and Minority Affairs of the Ministry of Foreign Affairs and Defence informed the applicant that permission had been refused “for security reasons, in the public interest and because [the applicant] made propaganda against the state”.”( Djavit An. V.Turkey, 2003)

Law: “Turkey disputed its liability under the Convention for the allegations set out in the application, which, it claimed, were imputable exclusively to the “TRNC”, an independent and sovereign State established by the Turkish Cypriot community in the exercise of its right to self-determination. In particular, Turkey submitted that the control and day-to-day administration of the designated crossing points and the issuing of permits were within the exclusive jurisdiction and/or responsibility of the “TRNC” authorities and not of Turkey.

The Court recalled that States which had ratified the European Convention on Human Rights could be held responsible for acts and omissions of their authorities which produced effects outside their own territory. Such responsibility could also arise when, as a consequence of military action, the State concerned exercised effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derived from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration. It was not necessary to determine whether Turkey actually exercised detailed control over the policies and actions of the “TRNC” authorities; it was obvious from the large number of troops engaged in active duties in northern Cyprus that the Turkish army exercised effective control over that part of the island. Such control entailed her responsibility for the policies and actions of the “TRNC”. Those affected by such policies or actions therefore came within the “jurisdiction” of Turkey.

The Court therefore concluded that the matters complained of in the case fell within the “jurisdiction” of Turkey and entailed Turkey’s responsibility under the Convention. (..)The refusals to grant these permits to the applicant in effect barred his participation in bi-communal meetings, preventing him from peacefully assembling with people from both communities. Accordingly, the Court concluded that there had been an interference with the applicant’s rights to freedom of peaceful assembly.” (Djavit An. V.Turkey, 2003) (..) There had, therefore, been a violation of Article 11.

Conclusion: violation*( Press release issued by the Registrar)

Assessment Of These Decisions And Inferences About Aim of Enjoyment This Right:

Legal regulations do not mean that certain forms of assembly have been defined and regulated, and that forms of meetings not regulated by law cannot enjoy freedom of assembly. Said forms should only be seen as examples and the forms of using freedom of assembly should be regarded as unlimited. Even if it is done for entertainment purposes, events such as exhibitions, concerts, fairs, seminars can be accepted within the scope of freedom of assembly. In domestic law of Turkey the assembly is defined as “open and closed place meetings organized by natural persons and legal entities within the framework of this Law to enlighten the public on certain issues and to adopt it by creating a public opinion”. As we can see in this case, the freedom of assembly is used for a legitimate aim.

Peaceful Gathering and a Short Review In Terms Of Gathering Place and Time/ Oya Ataman/Turkey, DİSK and KESK/Turkey, Samüt Karabulut/Turkey

The most important element of freedom of assembly is that it is peaceful. Under this right, only freedom of peaceful assembly has been granted to all. At this point, the purpose of the assembly organizers and their attitudes and behaviors during the exercise of this right are taken into consideration in determining whether the meeting is peaceful or not.

The right to freedom of assembly only safeguards gatherings which are nonviolent. Here it must be noted that, the right to freedom of assembly is not an absolute right. Thus, restrictions could be placed upon it to safeguard other legitimate interests such as national security, public safety, public order or respect for the rights of others. This however does not mean that the right could be restricted arbitrarily by invoking every ground.
Instead, ‘in each instance of potential restriction the state must clearly define the precise purpose served, as well as showing that the measure in question is necessary and proportionate’. In other words, the state must meet the proportionality scrutiny.

When an assembly is deemed non-peaceful, it is considered reasonable to restrict this right. Article 11 of the ECHR regulates that if it is “peaceful” it can enjoy the freedom of assembly. As long as it is peaceful, it can be said that it does not matter for what purpose the meeting is held. (Gelaye, 2017)

For a peaceful assembly, the aim of the first assembly should be peaceful. Prevention of a non-peaceful assembly may not lead to a violation of freedom of assembly provided that it complies with other criteria in the restriction regime.

It is possible that an assembly held for peaceful purposes may not actually become peaceful. At this point, it is necessary to decide whether the assembly is not peaceful or not, considering the whole meeting.

The place where freedom of assembly is used is an issue that comes to the fore especially in limiting this freedom. First of all, it should be stated that any space that is open to the public, as a rule, is an area where freedom of assembly can be used, and it is not possible to impose a general limitation in this regard. In particular, whenever there is a relationship between the purpose of the gathering and the space, the space must be used. For example, if the events that took place on May 1, 1977, where many people died, this relationship is considered to exist.

Case Study: ECtHR/ Oya Ataman/Turkey, Appl. No: 74552/01, 05.12.2006

Facts (briefly): “The applicant, president of the Istanbul Human Rights Association, organised a demonstration in Sultanahmet Square in Istanbul in the form of a march followed by a statement to the press. The police requested the group of 40-50 people, who were demonstrating by waving placards, to break up, telling them that the demonstration was unlawful as no prior notification had been given, and that they would be disturbing public order at a busy time of day. The demonstrators refused to comply and attempted to force their way through. The police used a kind of tear gas known as “pepper spray” to disperse them.”(Oya Ataman v. Turkey, 2006)

Law: “The group of demonstrators – some fifty persons who had wished to draw public attention to a topical issue – had not represented any danger to public order, apart from possibly disrupting traffic. The rally had begun at around midday and had ended within half an hour with the police intervention. The Court was struck by the authorities’ impatience in seeking to end the demonstration, which had been organised under the auspices of the Human Rights Association. Where demonstrators did not engage in acts of violence it was important for the public authorities to show a certain degree of tolerance towards peaceful gatherings. The forceful intervention of the police had been disproportionate and had not been necessary for the prevention of disorder.”(Oya Ataman v. Turkey, 2006)

Conclusion: violation(unanimously)

Case Study: ECtHR/ DİSK and KESK/Turkey, Appl. No: 38676/08, 27.11.2012

Facts (briefly): “On 29 April 2008 the applicants jointly notified the Beyoğlu district governor that they would be gathering before the Taksim Atatürk memorial on 1 May 2008 at 1 p.m. to celebrate Labour Day and commemorate their friends who had lost their lives during the demonstrations of 1 May 1977. (..)Subsequently, certain government authorities, including the Minister of the Interior and the Government’s spokesman, as well as the Istanbul Governor’s office, issued press statements, declaring that they were in possession of intelligence reports which precluded them from authorising any demonstration in Taksim Square, for security reasons. The authorities held that any demonstration held in Taksim on 1 May 2008 would be unlawful and unconstitutional on account of possible provocations and disruption of traffic and public order. They further stated that they were going to take extensive security measures on 1 May 2008, including shutting down certain schools in the nearby districts, stopping the operation of ferries and subways, blocking the roads leading to Taksim Square and deploying extra police for that day. …

(..)Approximately at 6 a.m. on 1 May 2008, members of the DİSK and KESK began gathering in front of the DİSK headquarters located in the district of Şişli for Labour Day celebrations. At around 6.30 a.m. the police asked the group to disperse, warning them that they were acting in violation of the Assemblies and Marches Act (Law no. 2911). The members of the group refused, arguing that they were merely waiting in front of the DİSK headquarters, which was a pedestrian area, and that they were not violating the said law in any way. The police, however, proceeded to disperse the group, by spraying them with pressurised water, paint and tear gas, both inside and outside the DİSK building. (..)At approximately 10.30 a.m. the group of demonstrators broke up of its own accord to forestall any further violence.” ( DİSK and KESK/Turkey, 2010)

Law: “The Government stated that the meeting in issue had been organised unlawfully. They pointed out that the second paragraph of Article 11 of the Convention imposes limits on the right of peaceful assembly in order to prevent disorder. (..)The Government maintained that the gathering of the representatives of the trade unions was permitted by the Beyoğlu district governor, and as a result a small group of representatives could have celebrated Labour Day at the Taksim Square to commemorate their friends who had lost their lives during the demonstrations of 1 May 1977. The Government further stated that they had received intelligence reports that a terrorist organisation would interfere in the Labour Day celebrations to provoke commotion.

(..)The Court also notes that States must not only safeguard freedom of peaceful assembly, but must also refrain from applying unreasonable indirect restrictions upon that right. Finally, it considers that, although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities in the exercise of the rights protected, there may also be positive obligations to secure their effective enjoyment. (..)The Court recalls that these principles are also applicable with regard to demonstrations and processions organised in public areas. It notes, however, that it is not contrary to the spirit of Article 11 if, for reasons of public order and national security, a priori, a High Contracting Party requires that the holding of meetings be subject to authorisation and regulates the activities of associations.

(..)According to the information in the file, there is also nothing to suggest that the group waiting in front of the DISK headquarters presented a danger to public order or engaged in violent acts. There is also no information in the file that the police had encountered any violent or active physical resistance which would explain the use of such an extreme use of force. Indeed, the security forces tried dispersing the people in front of the DISK Headquarters by using gas bombs, paint sprays and pressurised water. Several people were chased by police officers and beaten (..) In the Court’s view, when demonstrators do not engage in acts of violence, it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance.”( DİSK and KESK/Turkey, 2010)

Conclusion: violation (unanimously)

Assessment Of These Decisions And Inferences About Peaceful Gathering:

Based on Oya Ataman/Turkey case, it may be said that Turkey’s biggest problem with the freedom of assembly is that whether the meeting would impair public order. It is the necessity of a pluralist democracy that the state shows patience and tolerance to the non-violent behavior of the people who come together for peaceful purposes while using the right to assembly.

On the other hand, if threats to public order arising from the use of freedom of assembly have a real value, the competent authorities can take measures to eliminate these threats. Penalties may also be imposed in the event of holding meetings though such measures, attending such assemblies, or committing crimes in such meetings. The fact that the meeting was held only in contradiction with the procedure stipulated by law does not make the assembly peaceful.

According to the ECtHR, the existence of this situation alone does not constitute a rationale for intervention, as any demonstration held in public places may affect the flow of daily life.

In the DISK and KESK/Turkey case, another analyzing point should be made regarding the gathering place. Whenever there is a link between the purpose of the gathering and the space, the space in question must be used. For example, if the events that took place on May 1, 1977, where many people died, the relationship is considered to exist as we can see in this case. From this point of view, I would like to talk about a different feature about the gathering freedom. Those mentioned about the meeting place will also find the application area for the meeting time. For this reason, in cases where the purpose of the meeting is to remember or celebrate a certain event, the meeting should be held on a certain date. In such a case, the meeting should not be prevented by the state at a certain time. Sufficient time should be given to those using freedom of assembly to make their opinions public. To give a precedent case summary related to this subject;

Case Study: ECtHR/ Samüt Karabulut/Turkey, Appl. No: 16999/04, 27.01.2009

Facts (briefly): “The applicant took part with 30-35 other people in a peaceful demonstration organised in Istanbul by a Turkish human-rights association to protest against Israeli operations in Palestine. The organisers had not given the authorities prior notification of the demonstration as they were required to do by law (Article 10 of Law no. 2911) and were asked repeatedly by the police to disperse. Although most of the demonstrators complied with the police’s request almost immediately, the applicant intervened verbally when he saw a fellow demonstrator being arrested.” (Samüt Karabulut/Turkey, 2009)

Law: “The police intervention was prescribed by law and pursued the legitimate aims of preventing disorder and protecting public safety. In the absence of prior notification, the demonstration was unlawful. However, the unlawfulness of the demonstration did not per se justify an infringement of freedom of assembly and regulations in this sphere were not to be used as a hidden obstacle to the exercise of that freedom. The Government had not shown that the demonstrators represented a danger to public order or public safety and, in the absence of violence on their part, the authorities were expected to show a degree of tolerance. The demonstrators had in fact dispersed fairly quickly after being prompted by the police and the applicant had thus been forced to leave the scene without being given sufficient time to manifest his views. The police’s intervention was therefore disproportionate.”( Samüt Karabulut/Turkey, 2009)

Conclusion: violation (unanimously)

Restriction of the Regime For The Freedom Of Association And Assembly/ Refah Partisi (The Welfare Party) And Others V. Turkey

Freedom of association and assembly are not among the absolute rights and can be limited. The human rights restriction regime is of great importance to ensure the enjoyment of all rights and freedoms. The restriction regime regulates in which cases, how and how much the fundamental rights and freedoms can be limited, in other words, the limit of the restriction. The existence of a restriction regime in line with international standards prevents arbitrary restrictions to be brought to a right by the state and constitutes a guarantee for rights and freedoms as a limit is placed on the restriction.

The most widely adopted approach to the restriction regime emerged in the ECHR system. According to Article 11 of the ECHR, which regulates the freedom of association and assembly, the use of these freedoms is “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.”

In the light of this regulation, an intervention by public authorities to the freedom of association and assembly should be prescribed by law, follow only by the legitimate aims stated, and the intervention should be necessary in a democratic society.

In the ECHR, there is no restriction on the freedom of association and assembly as a priori in terms of its content, and the limitation has emerged only in the form of “peaceful” regarding the use of freedom of assembly. The current limitations regarding the freedom of association and assembly in the ECHR have emerged through the case law of the ECtHR.

According to Article 11 of the ECHR, the interference with the freedom of association and assembly must be prescribed by law, pursue a legitimate aim, and the intervention must be necessary in a democratic society. In interventions towards these freedoms, when examining the severity of the intervention, the intervention should be the least harmful and chilling effect tool for freedom of expression.

In the applications made for violations of the freedom of association and assembly, firstly, the existence of an intervention is questioned. There is no restriction on the form of interventions for these freedoms. Interventions to freedom of association and assembly vary. Interventions may originate from state or non-state actors. Sometimes an intervention process may arise involving both the state and non-state actors.

In here I would like to add Dogru’s classification regarding the legitimization of intervention.
“1. The Intervention Is Prescribed by Law

The intervention must have a basis in domestic law. If there is no basis for interference in domestic law, this is considered an arbitrary intervention and it is concluded that there is a violation of Article 11 of the Convention regardless of whether it carries other conditions.

2. The Intervention Has a Legitimate Aim
In the Articles 8, 9, 10 and 11 of the ECHR, it requires the state to pursue a “legitimate aim” in order to interfere with rights or freedom and includes various reasons in these articles. The ECtHR monitors whether one of the legitimate aims stated in the article is pursued by the intervention. These legitimate aims are “national security, public security, prevention of crime and disorder, protection of general health and general morality, protection of the rights and freedoms of others”.

3. The Fact That The Intervention is “Necessary In A Democratic Society”
While a restriction is imposed on the exercise of the right to a assembly or demonstration, it is necessary to check whether the restriction imposed complies with social need pressure.” (Dogru, 2006)

Whether the meeting is peaceful or not is important in terms of preventing or distributing the meeting. Although it is possible to intervene in a non-peaceful meeting, the intervention must be proportionate. The principle of proportionality requires that people who exercise freedom of peaceful assembly not be interfered with.

Case Study: Refah Partisi (The Welfare Party) And Others V. Turkey (Applications Nos. 41340/98, 41342/98, 41343/98 And 41344/98)

Facts (briefly): “In May 1997, the Principal State Counsel at the Court of Cassation applied to the Constitutional Court for the dissolution of the party on the ground that it was a centre of activities contrary to the principles of secularism (Article 69 § 6 of the Constitution). He referred to acts and statements of certain leaders and members of the party. The party’s representatives submitted that the statements had been distorted and taken out of context, that no criminal offence had been committed and that the party had been given no warning pertaining it to expel any member acting contrary to the law.

The State Counsel maintained that the party had described itself as engaged in a holy war (jihad) and had expressed the intention of introducing a theocracy and Islamic law (sharia). In January 1998 the Constitutional Court ordered the dissolution of the party. It referred to statements made by the second applicant with regard to the introduction of separate legal systems and the institution of a theocracy, if necessary by force, which the court found to be contrary to the constitutional principle of secularism. The court also referred to statements made by other members of the party, including Members of Parliament, advocating the introduction of sharia and, in some instances, the use of violence.

Moreover, the court decided to terminate the applicants’ mandates as Members of Parliament and to ban them from founding or joining any other political party for five years.”( Refah Partisi (The Welfare Party) And Others V. Turkey, 2003)

Law: “(..)About whether there was an interference: The parties accepted that Refah’s dissolution and the measures which accompanied it amounted to an interference with the applicants’ exercise of their right to freedom of association. The Court takes the same view.

(..)About whether the interference was justified: Such an interference will constitute a breach of Article 11 unless it was “prescribed by law”, pursued one or more of the legitimate aims set out in paragraph 2 of that provision and was “necessary in a democratic society” for the achievement of those aims.

(..) the Court’s overall examination of the question whether the dissolution of a political party on account of a risk of democratic principles being undermined met a “pressing social need” must concentrate on the following points: (i) whether there was plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently imminent; (ii) whether the acts and speeches of the leaders and members of the political party concerned were imputable to the party as a whole; and (iii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a “democratic society”.

(..)The overall examination of the above, points that the Court must also take account of the historical context in which the dissolution of the party concerned took place and the general interest in preserving the principle of secularism in that context in the country concerned to ensure the proper functioning of “democratic society”.

(..)The Court will devote the first part of its examination to the question whether Refah’s dissolution and the secondary penalties imposed on the other applicants met a “pressing social need”. It will then determine, if the case arises, whether those penalties were “proportionate to the legitimate aims pursued”.”( Refah Partisi (The Welfare Party) And Others V. Turkey, 2003)

Conclusion: no violation (unanimously)

Assessment Of This Decision In Terms Of Restriction Regime:

Unlike other assessments, I will do the review through the procedure I mentioned in the restriction regime. On 31 July 2001 the ECHR’s Third Chamber concluded the Refah Party case. the first time a political party closure case at the ECHR from Turkey have concluded that no violation of Article 11. It should therefore be discussed whether the ECtHR’s views on party dissolutions have changed with the Welfare Party decision.

The ECtHR stated that it is necessary to determine whether the dissolution of the Welfare Party is necessary in a democratic society, in other words, whether it satisfies a “pressing social need” or whether the dissolution is “proportionate to the legitimate aim intended”.

ECtHR stated that the Constitutional Court’s comment on the principle of secularism was made taking into account the history of Turkish law and Turkish society has tried a theocratic regime in the Ottoman Empire period. The court was reminded that then put an end to theocratic order by establishing a secular Republic of Turkey.

The Court concludes that the possibility of establishing a theocratic order in this country has not yet disappeared, given the fact that a large part of the population in the country is also Muslim. The ECtHR stated that the real question was whether the Welfare Party was ‘a centre against the principle of secularism’ and whether it was a political entity aimed at establishing a theocratic order.

The ECtHR states that the dogmas set by religion and the sharia that reflect the divine rules are fixed and unchanging rules. Political pluralism or the continuous evolution of public liberties has no place in sharia.

The Court noted that it is difficult to reconcile a sharia-based order with the basic principles of democracy understanding in the Convention.
According to the European Court, it is clear that Islamic criminal law and criminal procedural law, the sharia regime, which is based on the religious rules in all areas of private and public life, are contrary to democracy and human rights.

It is also seen that discourses in the form of a “fair order” or “order of God”, although they lead to different interpretations, refer to religious or divine rules that are used to describe the political regime advocated by the speakers when read in their context.

These discourses raise suspicion about the speakers’ commitment to a system that is not based on religious rules. According to the ECtHR, a political party engaged in actions aimed at establishing a law in a State party to the Convention.

It makes it is difficult for the party to be seen as an association that fits the ideal of democracy, which forms the basis of the Convention. Likewise, the ECtHR concluded that the political project of the Welfare Party was not imaginary and theoretical, but that it could be realized. The Welfare Party has the possibility to come to power as a political party and to fulfill its promises.

The Court concluded that the interference in question was proportionate to the legitimate aim intended, in other words, it met a “pressing social need” and that the grounds put forward by the Constitutional Court for the closure of the Welfare party were relevant and sufficient.

It should be noted that the ECtHR does not say that in order to close a party, it must necessarily be related to terrorism or violence. A party related to violence or terrorism may be closed; but a party that wants to destroy its antidemocratic and libertarian scheme, which is not related to violence, may be closed, and this would not be against the ECHR.

Conclusion
Freedom of expression and association is one of the fundamental rights of human beings because the defense and acquisition of all kinds of rights and freedoms depend on the existence of this freedom. In the civilized world, these freedoms have become an integral part of human life. In the 21st century, civilized society means organized society.

In this context, it is the leading condition of democratization that Turkey, which is on the way of being a civilized society, removes the barriers to freedom of expression and association as soon as possible, and makes legal and constitutional changes in this direction.

Freedom of expression and association and assembly carries another importance for our country compared to developed countries. These freedoms, which are necessary in order to maintain and advance the advanced situation in terms of developed countries, is much more important due to its function in eliminating the great dangers in the developing states that threaten the state and society. (Professor Dr. Burhan Kuzu)

In order to prevent these restrictions from being arbitrary, the rules provided must be followed.

Evidently, as in the cases I examined, Turkey, unfortunately there has been a violation of the subject.

My personal opinion overlaps with the decisions of the court, with the exception of the decisions made for political parties. It is very normal for the masses who want to make their voices heard within the multiethnic structure of the country. But I think there are very fine lines in order not to abuse this right.

Hoping to be more free about our freedoms and wake up to much better days.