Events
The applicant notified the Governorate in order to organise an event in Kadıköy İskele Square. The Governorate rejected the request on the grounds that the place in question was not one of the meeting areas designated pursuant to Article 6 of the Law No. 2911 on Meetings and Demonstrations and that the event to be organised outside the previously designated areas would be deemed unlawful under Article 23 of the same Law for this reason alone. The applicant’s lawsuit for the cancellation of the administrative act was rejected. Thereupon, the applicant filed an appeal; the Council of State upheld the decision subject to appeal on the grounds that it was in accordance with the procedure and the law and rejected the request definitively.
Allegations
The applicant claimed that his right to organise meetings and demonstrations was violated due to the refusal of permission on the grounds that the venue preferred for the meeting was not one of the assembly and march routes determined by the local administrative authority.
The Court’s Assessment
Considering the importance of the freedom of choice of venue for the achievement of the objectives of the organisation of the meeting and demonstration, an abstract and categorical prohibition of the freedom of choice of venue is unacceptable in terms of the Constitution. As a matter of fact, the meeting may need to be held in certain places in order to attract the attention of the target audience. Therefore, the freedom to choose which venue is most suitable for the meeting should be granted to the organisers of the meeting. Therefore, the limitations of the public authorities in this respect must be in accordance with the requirements of the democratic social order according to the conditions of the concrete case.
Moreover, since the first paragraph of Article 6 of the Law No. 2911 states that meetings and demonstration marches can be held anywhere, the place where the meeting and demonstration march can be held is determined as anywhere. Therefore, all public spaces must be open and available for the organisation of meetings. The pre-determination of the places where meetings and demonstration marches can be organised by the administration does not mean that meetings and demonstration marches cannot be organised in other places.
In the concrete case, the Governorate did not make an assessment based on the content, form, purpose, duration, number of participants, whether the meeting subject to the application posed a security risk, whether it would make daily life extremely and unbearably difficult, and whether an alternative venue other than this one would render the right to assembly ineffective. On the contrary, it only relied on the fact that the venue was not one of the venues determined by the administration and did not endeavour to establish a fair balance between the interests. Therefore, it has been assessed that the Governorate has established an administrative action by interpreting the legal restriction article broadly, without considering that the main purpose of the legal regulation underlying the transaction is to ensure the effective use of the right to organise assembly and demonstration marches.
In this respect, public authorities should avoid, among other measures to be taken to protect the right to peaceful assembly, practices that would cause hidden obstacles, including unreasonable restrictions on the right. In particular, the burden of proving that the interference with the applicant’s freedom to determine the place of assembly arises from a compelling social need falls on the intervening Governorate and the administrative judiciary supervising the interference. In order to prevent arbitrariness when interfering with the right and to demonstrate the justification of the intervention, the aforementioned authorities should make a separate assessment in cases similar to the concrete case, taking into account the concrete conditions in each case, rather than a categorical restriction that the meeting place is not one of the designated meeting and demonstration march places and routes. As in the case subject to the application, an application such as the elimination of the possibility of meetings and demonstration marches other than the places determined by the Governorate through a literal interpretation of the regulations in Law No. 2911 without an evaluation in terms of the necessity of the intervention in terms of democratic society constitutes an implicit restriction on the right to assembly and demonstration march.
However, the administrative court also assessed that the administrative act was in compliance with the law, but did not endeavour to justify how it reached this conclusion, and the scope of its review was limited to the examination of the conformity of the administrative act with the law.
On the other hand, the applicant, who stated that the meeting was organised in order to draw attention to the damages caused to nature, claimed that the mandatory assembly areas provided by the administration were contrary to the principles of environment and urbanism and therefore incompatible with the purposes of the meeting, but the administrative judicial authority did not conduct any research and evaluation on this issue.
As a result, it is concluded that the interference with the applicant’s right to organise meetings and demonstration marches is not compatible with the requirements of democratic social order.
For the reasons explained above, the Constitutional Court decided that the right to organise meetings and demonstrations was violated.
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