ECtHR, freedom of assembly and May Day in Turkey

As in the case of discussion over freedom of press woes, confusion on where we should draw the line between freedom of assembly and the pressing need for security and public safety still persists in Turkey with a wide margin. The line was deeply blurred last week when some of the trade unionists defied the government ban to hold May Day rallies in Taksim Square, one of the centers of attraction in Turkey’s largest city. Citing major construction area in the square, the governor of the city denied the request from unionists to hold a mass rally in Taksim, giving an alternative and, in fact, much larger space in the city for such a gathering.

Some unionists, joined by violent marginal groups, tried to push their way through barricaded roads leading to Taksim, only to be confronted by riot police who had to use water cannons and pepper spray to disperse the agitated crowd. From video footage aired on Turkish TV stations, some violent groups were seen hurling firebombs, pavement stones, ball bearings and steel washers at the police. Both public and private properties in back alleys leading to Taksim were vandalized by rioters as well. Oğuz Kağan Köksal, the head of the parliamentary National Defense Commission and former national police chief, told deputies in Parliament last week that protestors damaged 66 shops, breaking their windows — including ones belonging to four banks. He was asking why one suspect who was apprehended was carrying 40 firebombs at the rally.

The main opposition Republican People’s Party (CHP) defended unionists, saying that Article 34 of the Turkish Constitution guarantees freedom of assembly. Süleyman Çelebi, a CHP deputy and former unionist, even claimed that the European Court of Human Rights (ECtHR) registered Taksim Square as a legitimate rallying area and had punished the Turkish government for the May Day ban in the past. Unfortunately, Çelebi and his party are not telling the whole truth, or rather they are obscuring the truth of how the ECtHR ruled on the case of Disk and Kesk v. Turkey, which was launched by the same union groups in Strasbourg after the government banned May Day rallies in 2008. Since scenes from last week in İstanbul are no different than the ones Turkey witnessed in the 2008 May Day rally, the court ruling gives us a good basis to develop our discussion on freedom of assembly. Let’s do some fact-checking first and try to differentiate cheap political scoring from the court decision that is based on evidence and the existing articles in Turkish law and in the European Convention on Human Rights (ECHR).

The Turkish Constitution says, “Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission,” and adding to that, “The formalities, conditions and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law.” The law on demonstration (Law No. 2911) explains in detail how rallies can be held, banned or disrupted. For example, the same law in its section 22 prohibits demonstrations and processions on public streets, in parks, places of worship and buildings in which public services are based. “Demonstrations organized in public squares have to comply with security instructions and not disrupt individuals’ movements or public transport,” it underlines. Section 24 states that rallies which do not comply with the provisions of this law will be dispersed by force on the order of the governor’s office and after the demonstrators are warned.

Looking at the rights convention, Article 11 of the ECHR states, “Everyone has the right to freedom of peaceful assembly,” stressing that restrictions can only be imposed by law and when necessary in a democratic society for national security, public safety, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others. In the case of Disk and Kesk v. Turkey, the Strasbourg court, rejecting unionists’ complaint, noted that the government had a right to impose a restriction on a May Day parade because it was clearly prescribed in the relevant domestic law. As for the question of whether restrictions are necessary on holding a rally in Taksim Square, the court underlined that Taksim lies in the heart of the city, and a large-scale demonstration could indeed cause disruption to public life. Therefore, unlike unionists’ portrayal of the ruling as a clear rejection of a government ban on Taksim rally, the court found government action to be perfectly in line with the domestic legislation as well as with the relevant ECHR articles.

It was the complaint that the government security forces used disproportionate force against marchers that was held by the court as infringing upon rights to free assembly. I’m not a judge, but my sense is that if government lawyers had done a better job in defending their case, that complaint could have been thrown out as well — because the court clearly said in its ruling that the Turkish government failed to support its claim of violence of marchers with evidence that demonstrators threw stones at the police, prompting the police to use tear gas and water cannon in response. What is more, there were no domestic proceedings initiated against the unionists in connection with allegations. In the absence of evidence proving violent or active physical resistance which would explain the use of force, the court had no choice but to rule that the police response was disproportionate. I do not know who defended the government position in 2008, but it was clear that the government attorneys did a very poor job then. If they had submitted corroborating evidence showing that protestors engaged in violent acts, the case could have gone the other way around.

The court declined to rule on other complaints lodged by the unionists based on Articles 13 and 14 of the ECHR, saying that it addressed the core of the problem in the complaint already and there was no need for separate reviews on other articles. It also ruled against any non-pecuniary damages sought by petitioners against the Turkish government because of insufficient documents provided by the unionists.

In last week’s incidents, I think the government hand for banning the rally in Taksim has been strengthened quite substantially. First of all, there is a new argument of the huge construction site added to the Taksim debate. The site is full of heavy machinery, exposed steel bars and excavated wells that run as deep as 30 to 40 meters. From a public safety angle, it was reasonable to ban the rally in Taksim for the safety of rally attendees. Secondly, the government offered an alternative and much secure site for the rally. The police apprehended 72 people in connection with the illegal rally, and an investigation into the violence was launched. According to Interior Minister Muammer Güler, 22 police officers were wounded — three in serious condition — from the stones and steel balls thrown at them by rioters. One police officer sustained a concussion, requiring immediate surgery, he said. The May Day rallies were held across the nation in 72 provinces with 122 separate activities. With the exception of İstanbul, all others went smoothly without major incident.

Interestingly enough, it was the CHP itself that banned the May Day rallies altogether in 1979, citing security precautions. The fact that Labor Day Celebrations in Taksim Square two years before the CHP ban resulted in the deaths of 34 people was also a factor in the government ruling. The current government, in fact, restored May Day to an official holiday and allowed people to rally freely, including in Taksim, in 2009. Whether the government could have handled this year’s May Day events differently or not begs further questioning. It seems both sides were stubborn and were not interested in compromise. Was it really necessary to halt the metro, metrobus and ferry services to prevent crowds from flocking to the square? Not really. Shutting down the city was quite a hassle for residents and visiting tourists in İstanbul. Instead the police should have simply barricaded the area under construction.

In any case, looking at the evidence from last week, I think unionists would find themselves in a rather difficult position to defend their conduct at the Strasbourg-based rights court. In the meantime, I suggest Çelebi and his union colleagues should stop distorting the ECtHR ruling of the May Day 2008 events. It may come as a shock to them, but the ruling is publicly available in the court’s HUDOC database, and anybody with Internet access can take a look and examine the decision.

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