Events
The applicant trade union notified the Governorate on 25/4/2016 to hold a public commemoration and celebration on 1 May Labour and Solidarity Day in Taksim Square. The Governorate rejected the request on the grounds that Taksim Square was not one of the eight areas designated for 1 May Labour Day events and on the grounds of public order and public safety. In the lawsuit filed for the cancellation of the aforementioned decision, the court dismissed the case on the grounds that there was no contradiction to the law in the administrative action based on the fact that Taksim Square was not among the meeting and demonstration areas designated for 2016, public order and public security. The applicant Trade Union filed an appeal against the dismissal decision and the Regional Administrative Court rejected the appeal.
Allegations
The applicant claimed that the refusal to allow celebrations in Taksim Square on 1 May violated his right to organise meetings and demonstrations.
The Court’s Assessment
A. Background Information
On 20/7/2015, 34 people lost their lives and 73 people were injured in a suicide bomb attack allegedly carried out by DAESH during a press statement on the conflicts in Syria in Suruç. Following this attack, Turkey was subjected to numerous terrorist attacks. Until December 2016, many terrorist attacks were carried out in many neighbourhoods of Istanbul.
B. Evaluation of the Concrete Incident
The days of 1 May, when large-scale meetings and demonstrations are organised, are days when public authorities take more measures to protect public order than usual. Therefore, on such days, it would be inevitable that the measures taken for the protection of public order would conflict with the fundamental rights of individuals. According to the Constitutional Court, the interference in question cannot be considered in accordance with the requirements of the democratic social order unless it can be shown that the restriction arises from a compelling social need and is proportionate. For this reason, the issues relied on in the justification of the administration to restrict the right to choose the place and the limited access to the square should be analysed.
The General Assembly of the Constitutional Court found Article 6 of the Law No. 2911 on Meetings and Demonstration Marches, which authorises the highest local authority to determine the place and route of meetings and demonstration marches, to be compatible with the Constitution. However, the Constitutional Court found that the objective meaning of the rule does not allow for the complete disregard of the freedom of individuals to choose the place and route of meetings and demonstration marches. In its decision, the Constitutional Court emphasised that the location of the meeting place or the route of the demonstration march is of great importance for the communication of the views desired to be expressed to the interlocutors and for the achievement of the purpose of the meeting. For this reason, the Constitutional Court stated that the local authority must exercise its authority in a manner that respects the freedom of the organisers to choose the venue. According to the Constitutional Court, it is a requirement of the principle of proportionality to observe the delicate balance between the individual interest of individuals who want to organise meetings and demonstrations and the public interest in the protection of public order and the rights of third parties.
Article 6 of the Law No. 2911 does not exclude the highest local authority from determining the venue of the meeting or demonstration, taking into account the purpose, size, nature and number of participants of the meeting or demonstration, in order to protect public order and the rights of third parties. As a matter of fact, public areas are effective and natural places where meetings and demonstration marches are organised. These areas also serve certain social and cultural needs of the public such as rest, travelling and entertainment. Therefore, these areas may lead to the conflict of different freedoms. In the event of a conflict between fundamental rights and freedoms, a reasonable balance should be struck between the freedoms and a way should be adopted in which both are protected to the extent necessary. In this context, if the organisation of an assembly and demonstration march in a public area restricts the rights and freedoms of others, an appropriate solution should be found to ensure that both groups can exercise their rights instead of prohibiting the assembly and demonstration march in that area. In this context, it is possible for the local authority to determine different places and routes according to the size and purpose of the meeting, and to make a gradation between these places, if necessary, in order to ensure a balance between public interest and individual interest.
Firstly, in the assessment of the concrete case, the general conditions at the time of the interference should be taken into account. At the time of the meeting subject to the application, terrorist organisations carried out suicide bombings in crowded public places, including Istanbul and Taksim Square, with the aim of destroying large masses of people in the country and of exerting destructive effects on a wider area. In addition, many security officers and civilians lost their lives and hundreds of people were injured as a result of terrorist attacks carried out for this purpose. Considering that the aforementioned terrorist attacks continued after 1 May 2016, it cannot be said that the administration’s security grounds for holding a large-scale meeting in Taksim Square are not concrete and justified.
The administration allowed a limited number of representatives of the trade unions that applied to the administration to hold a commemoration meeting in Taksim Square on 1 May Labour and Solidarity Day, taking into account the symbolic importance of the Labour Day commemoration events in Taksim Square for the workers. Indeed, many representatives of non-governmental organisations and political parties participated in this event. Within this framework, a group of approximately one hundred people carrying flags and banners of some organisations and trade unions, including the applicant trade union, marched and made a press statement on 29/4/2016 on Beyoğlu İstiklal Street as part of the celebrations of 1 May 2016 Labour and Solidarity Day. In addition, some trade union representatives organised events in the square on 30/4/2016 and 1/5/2016.
On the other hand, the Governor’s Office also proposed an alternative assembly and demonstration organisation area for celebrations in different meeting areas. As a matter of fact, the request of the Organising Committee, which included the general secretary of the applicant trade union, to hold 1 May celebrations at a venue determined by the administration was approved by the Governorate.
The Administration restricted the right to assembly and demonstration by considering that the security reasons for holding a large-scale meeting in Taksim Square were clearly more serious than the disadvantage of banning the meeting. However, the right in question was not completely abolished, and a narrow restriction was imposed by proposing an alternative venue and allowing a certain number of people to hold a commemoration event in Taksim Square. In this context, it is understood that a fair balance has been established between public order and security and the right to organise meetings and demonstrations, and that a way has been adopted in which both rights are protected to the extent necessary.
As a result, it is concluded that the restriction imposed on the right to organise meetings and demonstration marches in the concrete case is not of a nature that renders the said right meaningless, meets a compulsory social need and is proportionate.
For the reasons explained above, the Constitutional Court decided that the right to organise meetings and demonstrations was not violated.
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