Events
On 9/1/2018, a group of approximately ten people, including the applicant, who had previously been dismissed from public service, gathered on a street in Ankara to make a press statement in support of two people who had been dismissed from public service and were on hunger strike and to protest against the dismissals under the state of emergency measures. The group members chanted slogans that the two applicants were not alone and held three banners they had prepared earlier. The police warned the group with a megaphone to disperse and then took the group members by the arms and forced them into a police van.
The applicant, reacting to the pushing of another person into the van, made an attempt to get out through the half-open rear door of the van but could not get out because the police officers pushed him into the van and tried to close the door. When the applicant started shouting, a police officer fired pepper spray several times at the applicant’s face and clothing from a very close distance. The applicant, trying to avoid the pepper spray, lost his balance and somehow got out of the minibus. The police officers tried to force the applicant into the minibus by pushing him with their hands and shields and holding him by his clothes. The applicant was injured during this scuffle; shortly after the incident, the applicant lodged a criminal complaint against the police chiefs and officers who dispersed the press statement and caused his injury. At the end of the investigation, the prosecutor’s office issued a decision of non-prosecution on the grounds that the police were authorised to use force to the extent necessary while performing their duties, that there was no deliberate act to injure the applicant and that the police acted in accordance with the legislation. The applicant’s objection to the decision of the prosecutor’s office was rejected by the criminal court of peace.
Allegations
The applicant claimed that the prohibition of treatment incompatible with human dignity was violated due to the injury caused by the use of force by law enforcement officers and the ineffectiveness of the criminal investigation into this incident, and the right to organise meetings and demonstrations was violated due to the banning of meetings and demonstrations by the local authority for a certain period of time and the dispersal of a peaceful meeting by law enforcement officers due to this ban.
The Court’s Assessment
1. Regarding the Allegation of Violation of the Prohibition of Treatment Incompatible with Human Dignity
According to the Constitutional Court’s assessment of the treatment and punishments prohibited under the third paragraph of Article 17 of the Constitution, the treatment of the applicant with pepper spray can be regarded as treatment incompatible with human dignity, considering the development of the incident and the effect of the pepper spray on the applicant. This is because, although the applicant was in a closed and confined space with many people, pepper spray was sprayed several times on the applicant’s face and clothes from a very close distance. Moreover, before using pepper spray, the police officer did not take into account that the applicant and many other persons were in a confined space and did not consider the availability of alternative means of use of force. In this case, the material dimension of the prohibition of treatment incompatible with human dignity was violated.
The principles regarding the violation of the procedural dimension of the prohibition of treatment incompatible with human dignity have already been recognised in many judgements. According to the aforementioned principles, if a person has a defensible claim that he or she has been subjected to a physical or mental attack in violation of the third paragraph of Article 17 of the Constitution, an effective investigation must be conducted into this claim.
A criminal investigation was initiated by the prosecutor’s office following the criminal complaint regarding the incident that resulted in the applicant’s injury. Within the scope of this investigation, the video recordings taken by the relevant unit of the security directorate and the minutes of the law enforcement officers were brought, the applicant’s final forensic report was obtained, the video recordings in the investigation file were examined by an expert and the applicant’s statement was taken. However, despite the reports on the applicant, no steps were taken to identify the police officers who used pepper spray and physical force against the applicant and to take their statements, the statements of the persons who were taken in the same minibus with the applicant were not taken and the video recordings were not examined by the prosecutor. However, the expert report and the police reports do not coincide with the video recordings in the investigation file and the examination of the video recordings does not require technical knowledge in the concrete case. Furthermore, although the prosecutor’s office decided that there was no grounds for prosecution, stating that the police were authorised to use force to the extent necessary while performing their duties and that the police acted in line with the legal legislation, it did not explain why the police had to use force and whether the force used was proportionate to the reason for the use of force. Therefore, the procedural dimension of the prohibition of treatment incompatible with human dignity was violated.
For the reasons explained above, the Constitutional Court ruled that the substantive and procedural aspects of the prohibition of treatment incompatible with human dignity were violated.
2. Regarding the Allegation of Violation of the Right to Organise Meetings and Demonstrations
During the two-year state of emergency declared following the attempted coup d’état of 15 July 2016, the Governor of Ankara banned or authorised all meetings and demonstrations throughout the province for a total of approximately eleven months, eight of which were uninterrupted. The banning decision, which is one of these decisions and which constitutes the basis for the law enforcement intervention subject to the application, was issued on the grounds that “there is intelligence that a hunger strike or sit-in protest will be organised in various places and parks of Ankara on a 24-hour basis in order to support two people on hunger strike demanding their return to work and to protest their arrest” and that public order and the prevention of crime or the protection of the rights and freedoms of others may be endangered.
It is understood that the banning decision of the Governor of Ankara was issued pursuant to Article 11 (m) of the State of Emergency Law No. 2935. It is assessed that the intervention made to the meeting pursuant to the Law No. 2911 on Meetings and Demonstrations on the grounds of violating the aforementioned banning decision meets the criterion of legality. The examination was conducted within the scope of Article 15 of the Constitution, considering that the state of emergency was in force in the whole country at the time of the intervention subject to the application and the banning decision of the Governor of Ankara.
In its decision in Adnan Vural and others ([GK], B. No: 2017/36237, 10/3/2022), the Constitutional Court examined the conformity of the intervention in the form of imposing administrative fines on those who participated in meetings held in violation of the banning decisions during the state of emergency with the requirements of democratic social order according to Article 13 of the Constitution and the proportionality required by the state of emergency according to Article 15 of the Constitution. In the aforementioned decision, the Constitutional Court, which also analysed the meeting subject to the application and the administrative fine imposed on the applicant due to his participation in this meeting, stated that the security concerns that were tried to be eliminated by the banning decision could not be clearly demonstrated by the administration and that the threat of terrorism was mentioned abstractly, the administrative fines imposed were not in accordance with the requirements of the democratic social order, since they did not show that there was a danger to public order that could not be eliminated by less restrictive practices, and since the banning decisions taken one after the other on template grounds reached a level that rendered the right to organise meetings and demonstrations meaningless and impossible
In the concrete case, there is no assessment that the event caused disruption of some activities, disrupted public order or caused a real concern about public order due to the weakening of security measures taken. There is no reason to reach a different conclusion from the one reached in the above-mentioned decision, and it is concluded that the intervention in the subject of the application is not to the extent required by the state of emergency and that it cannot be demonstrated with a relevant and sufficient justification that it meets a compelling social need.
For the reasons explained above, the Constitutional Court decided that the right to organise meetings and demonstrations was violated.
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