SECOND SECTION
CASE OF OYA ATAMAN v.
(Application no. 74552/01)
JUDGMENT
FINAL
This judgment will become final in
the circumstances set out in Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Oya Ataman v.
The European
Court of Human Rights (Second Section), sitting as a Chamber composed of:
Mr J.-P.
Costa, President,
Mr A.B. Baka,
Mr R. Türmen,
Mr M. Ugrekhelidze,
Mrs E. Fura-Sandström,
Mrs D. Jočienė,
Mr D. Popović,
judges,
and Mr S.
Naismith, Deputy
Section Registrar,
Having
deliberated in private on
Delivers the
following judgment, which was adopted on that date:
PROCEDURE
1. The
case originated in an application (no. 74552/01) against the
2. The
applicant was represented by Mr G. Şan, of the Istanbul Bar. The Turkish
Government (“the Government”) did not appoint an Agent for the purposes of the
proceedings before the Court.
3. On
THE FACTS
4. The
applicant was born in 1970 and lives in
5. On
6. At
about
7. The
demonstrators refused to obey and attempted to continue marching towards
against the police, who dispersed the group using a kind of tear gas known as “pepper
spray”. The police arrested
thirty-nine demonstrators, including the applicant, and took them to a police
station.
8. After
an identity check, and in view of her profession, the applicant was released at
9. On
10. On
11. On
12. On
II. RELEVANT
LAW AND PRACTICE
A. Domestic
legislation on freedom of assembly
1. Constitutional
guarantees
13. Article
34 of the Constitution provides:
“Everyone has
the right to hold unarmed and peaceful meetings and demonstration marches
without prior permission.
...
The
formalities, conditions, and procedures governing the exercise of the right to
hold meetings and demonstration marches shall be prescribed by law.”
2. The
Demonstrations Act
14. At
the material time section 10 of the Assemblies and Marches Act (Law no. 2911) was
worded as follows:
“In order for
a meeting to take place, the governor's office or authorities of the district
in which the demonstration is planned must be informed, during opening hours
and at least seventy-two hours prior to the meeting, by a notice containing the
signature of all the members of the organising board...”
15. Section 22 of the same Act
prohibits demonstrations and processions on public streets, in parks, places of
worship and buildings in which public services are based. Demonstrations
organised in public squares must comply with security instructions and not
disrupt individuals' movement or public transport. Finally, section 24 provides
that demonstrations and processions 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 have been warned.
B. Opinion
of the
16. The European Commission
for Democracy through Law (the Venice Commission) at its 64th plenary session (21-22 October 2005)
adopted an Opinion interpreting the OSCE/ODHIR guidelines on drafting laws on
freedom of assembly with regard to the regulation of public meetings. It set
out its approach in this area, particularly with regard to advance notice of
demonstrations in public places:
“29. Establishing
a regime of prior notification of peaceful assemblies does not necessarily
extend to an infringement of the right. In fact, in several European countries
such regimes do exist. The need for advance notice generally arises in respect
of certain meetings or assemblies – for instance, when a procession is planned
to take place on the highway, or a static assembly is planned to take place on
a public square - which require the police and other authorities to enable it
to occur and not to use powers that they may validly have (for instance, of
regulating traffic) to obstruct the event.”
However, the
Venice Commission clearly emphasised that the regime of prior notification must
not in any circumstances indirectly restrict the right to hold peaceful
meetings by, for instance, providing for too detailed and complicated
requirements, or imposing too onerous procedural conditions (paragraph 30 of
the opinion).
C.
International regulations on the use of “tear gas”
17. Under
Article I (5) of the Convention on the Prohibition of the Development,
Production, Stockpiling and Use of Chemical Weapons and on Their Destruction of
The CWC
entered into force with regard to
18. However,
it is recognised that the use of this product can produce effects such as
respiratory problems, nausea, vomiting, irritation of the respiratory tract,
irritation of the tear ducts and eyes, spasms, chest pain, dermatitis or
allergies. In strong doses, it may cause necrosis of tissue in the respiratory or
digestive tract, pulmonary oedema or internal haemorrhaging (haemorrhaging of
the suprarenal gland).
THE LAW
I. AS
TO THE ADMISSIBILITY
19. The
Court considers, in the light of the parties' submissions, that the application
raises complex issues of fact and law which require examination on the merits; accordingly,
it cannot be declared manifestly ill-founded within the meaning of Article 35 §
3 of the Convention. As no other ground for declaring it inadmissible has been
established, the Court declares the remainder of the application admissible.
II. ALLEGED
VIOLATION OF ARTICLE 3 OF THE CONVENTION
20. The
applicant complained that tear gas, known as “pepper spray”, had been used to
disperse a group of demonstrators, provoking physical unpleasantness such as
tears and breathing difficulties. She relied on Article 3 of the Convention, which
provides:
“No one shall
be subjected to torture or to inhuman or degrading treatment or punishment.”
21. The
Government noted that the gas used to disperse the demonstrators complied with
health requirements and with international conventions. They explained that the
gas used was Oleo-resin Capsicum (OC), known as “pepper spray” and submitted an
expert report on this product. They also noted that the applicant had not
submitted any medical report as evidence of possible ill-effects caused by the
gas.
22. The
applicant contested the Government's argument.
23. The
Court reiterates that, according to its case-law, ill-treatment must attain a
minimum level of severity if it is to fall within the scope of Article 3
of the Convention. Treatment is considered to be “inhuman” if, inter alia, it was premeditated, was
applied for hours at a stretch and caused either actual bodily injury or
intense physical or mental suffering. Furthermore, in considering whether a
treatment is “degrading” within the meaning of Article 3, the Court will have
regard to whether its object is to humiliate and debase the person concerned
and whether, as far as the consequences are concerned, it adversely affected
his or her personality in a manner incompatible with Article 3 (see, inter alia, Kudła v. Poland
[GC], no. 30210/96, § 92, ECHR 2000-XI).
24. The
Court will examine the facts in the light of its well-established case-law (see,
among several other examples, Assenov and
Others v. Bulgaria, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3288, § 93; Selmouni v. France [GC], no. 25803/94,
§ 95, ECHR 1999-V; Raninen v. Finland,
judgment of 16 December 1997, Reports
1997-VIII, pp. 2821‑2822, § 55; V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX; Chahal v. the United Kingdom, judgment
of 15 November 1996, Reports 1996-V,
p. 1855, § 79; Klaas v. Germany,
judgment of 22 September 1993, Series A no. 269, pp. 17‑18, § 30; and
Labita v.
Italy [GC], no. 26772/95, § 120, ECHR 1999‑IV).
25. The
Court will first examine the issue of the use of “pepper spray”. It notes that
this gas, used in some Council of Europe member States to keep demonstrations
under control or to disperse them in case they get out of hand, is not among
the toxic gases listed in the Annex to the CWC. However, it notes
that the use of this gas may produce side-effects such as respiratory problems,
nausea, vomiting, irritation of the respiratory tract, irritation of tear ducts
and eyes, spasms, thoracic pain, dermatitis or allergies (see paragraph 18 above).
26. However, the
Court observes that the applicant did not submit any medical reports to show
the ill-effects she had suffered after being exposed to the gas. The applicant, who had been
released shortly after being arrested, had not asked for a medical examination
either (see Kılıçgedik v. Turkey
(dec.), no. 55982/00,
27. The
Court therefore holds that there has been no violation of Article 3 of the Convention.
III. ALLEGED
VIOLATION OF ARTICLE 11 OF THE CONVENTION
28. The
applicant complained of an infringement of her right to freedom of expression
and of assembly, in that the demonstration and the
reading of a press statement, scheduled for the end of the event, had been
prohibited by the police.
The Court
points out that, in its partial decision on the admissibility of the
application, it stated its intention to examine these complaints under Article 11
of the Convention, the relevant part of which provides:
“1. Everyone
has the right to freedom of peaceful assembly and to freedom of association ...
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... for the
prevention of disorder or crime ...or for the protection of the rights and
freedoms of others...”
29. The
Government submitted that the meeting in question had been organised unlawfully
in that no advance notification had been sent to the relevant authorities. They
pointed out that the second paragraph of Article 11 imposed limits on the
right of peaceful assembly in order to prevent disorder.
30. The
Court notes at the outset that there is no dispute as to the existence of an
interference in the applicant's right of assembly. This interference had a
legal basis, namely section 22 of the Assemblies and Marches Act (Law no. 2911),
and was thus “prescribed by law” within the meaning of Article 11 § 2 of the Convention.
There remains the question whether the interference pursued a legitimate aim
and was necessary in a democratic society.
1. Legitimate
aim
31. The
Government submitted that the interference submitted legitimate aims, including
the prevention of disorder and protection of the rights of others.
32. The
Court considers that the disputed measure may be regarded as having pursued at
least two of the legitimate aims set out in paragraph 2 of Article 11, namely
the prevention of disorder and the protection of the rights of others,
specifically the right to move freely in public without restriction.
2. Necessary
in a democratic society
33. In
the Government's opinion, the applicant had taken part in a demonstration, held
in a public square without prior notification and contrary to the relevant
domestic legislation. They also noted that, together with other demonstrators,
the applicant had not complied with the order to disperse. In those
circumstances, and taking into account the margin of appreciation afforded to
States in this sphere, the Government considered that the risk of disruption to
civilians who were in the park at a busy time of day and the demonstrators'
resistance justified the dispersal of the gathering in question. In their
opinion, the police intervention had been a necessary measure within the
meaning of the second paragraph of Article 11 of the Convention.
34. The
applicant alleged that the police had intervened without waiting for the public
statement to be read out, on the pretext that the meeting was disrupting public
order.
35. The
Court refers in the first place to the fundamental principles underlying its
judgments relating to Article 11 (see Djavit An v. Turkey, no.
20652/92, §§ 56‑57, ECHR 2003‑III; Piermont v. France, judgment of 27 April 1995, Series A no.
314, §§ 76‑77; and
Plattform “Ärzte für das Leben” v. Austria,
judgment of 21 June 1988, Series A no. 139, p. 12, § 32). It is clear from
this case-law that the authorities have a duty to take appropriate measures
with regard to lawful demonstrations for in order to ensure their peaceful conduct
and the safety of all citizens.
36. The
Court also notes that States must not only safeguard the right to assemble
peacefully but 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 with the exercise of the rights protected, there may in
addition be positive obligations to secure the effective enjoyment of these
rights (see Djavit An, cited
above, § 57).
37. As a preliminary point, the Court
considers 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 (see Djavit An, cited above, §§ 66‑67).
38. Having
regard to the domestic legislation, the Court observes that no authorisation is
required for the holding of public demonstrations; at the material time,
however, notification was required seventy-two hours prior to the event. In
principle, regulations of this nature should not represent a hidden obstacle to
the freedom of peaceful assembly as it is protected by the Convention. It goes
without saying that any demonstration in a public place may cause a certain
level of disruption to ordinary life and encounter hostility; this being so, it
is important that associations and others organising demonstrations, as actors
in the democratic process, respect the rules governing that process by
complying with the regulations in force.
39. The Court considers, in the absence
of notification, the demonstration was unlawful, a fact that the applicant does
not contest. However, it points out that an unlawful situation does not justify
an infringement of freedom of assembly (see Cisse v. France, no. 51346/99, § 50,
ECHR 2002‑III (extracts)). In the instant case, however, notification
would have enabled the authorities to take the necessary measures in order to
minimise the disruption to traffic that the demonstration could have caused
during rush hour. In the Court's opinion, it is important that preventive
security measures such as, for example, the presence of first-aid services at
the site of demonstrations, be taken in order to guarantee the smooth conduct of any event, meeting
or other gathering, be it political, cultural or of another nature.
40. It
appears from the evidence before the Court that the group of demonstrators was informed
a number of times that their march was unlawful and would disrupt public order
at a busy time of day, and had been ordered to disperse. The applicant and
other demonstrators did not comply with the security forces' orders and
attempted to force their way through.
41. However, there is no evidence to suggest that
the group in question represented a danger to public order, apart from possibly
disrupting traffic. There were at most fifty people, who wished to draw
attention to a topical issue. The Court observes that the rally began about
midday and ended with the group's arrest within half an hour. It is
particularly struck by the authorities' impatience in seeking to end the
demonstration, which was organised under the authority of the Human Rights Association.
42. In
the Court's view, where 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.
43. Accordingly,
the Court considers that in the instant case the police's forceful intervention
was disproportionate and was not necessary for the prevention of disorder
within the meaning of the second paragraph of Article 11 of the Convention.
44. There
has accordingly been a violation of that provision.
IV. APPLICATION
OF ARTICLE 41 OF THE CONVENTION
45. Article
41 of the Convention provides:
“If the Court
finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows
only partial reparation to be made, the Court shall, if necessary, afford just
satisfaction to the injured party.”
A. Damage
46. The
applicant claimed 1,190.83 euros (EUR) in respect of pecuniary damage for
having been prevented from working for six hours on the day of the
demonstration and EUR 20,000 in respect of the non-pecuniary damage which she
alleged she had sustained.
47. The
Government contested these amounts.
48. The
Court finds no causal link between the violation found and the pecuniary damage
alleged, and dismisses this claim. In addition, with regard to the
non-pecuniary damage, it considers that the applicant is sufficiently
compensated by the finding of a violation of Article 11 of the Convention.
B. Costs
and expenses
49. The
applicant also claimed EUR 8,051.77 for the costs and expenses incurred before
the Court.
50. The
Government considered that sum exorbitant.
51. According
to the Court's case-law, an award can be made in respect of costs and expenses
only in so far as they have been actually and necessarily incurred by the
applicant and are reasonable as to quantum (see Nikolova v. Bulgaria [GC], no. 31195/96, § 79, ECHR 1999‑II). In this connection, it notes that
the applicant has not furnished any evidence in support of the costs and
expenses incurred. It remains the case, however, that preparation of the
instant judgment necessarily incurred certain costs. Accordingly, ruling on an
equitable basis, the Court considers it reasonable to award the applicant EUR 1,000
under this head.
C. Default
interest
52. The
Court considers it appropriate that the default interest should be based on the
marginal lending rate of the European Central Bank, to which should be added
three percentage points.
FOR THESE
REASONS, THE COURT UNANIMOUSLY,
1. Declares the remainder of
the application admissible;
2. Holds that there has not
been a violation of Article 3 of the Convention;
3. Holds that there has been a violation of
Article 11 of the Convention;
4. Holds that the finding of a violation in
itself constitutes sufficient just satisfaction for the non-pecuniary damage
sustained by the applicant;
5. Holds
(a) that
the respondent State is to pay the applicant, within three months from the date
on which the judgment becomes final according to Article 44 § 2 of the Convention,
EUR 1,000 (one thousand euros) in respect of costs and expenses, plus any tax
that may be chargeable on that amount, to be converted into new Turkish liras
at the rate applicable on the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement simple
interest shall be payable on the above amount at a rate equal to the marginal
lending rate of the European Central Bank during the default period plus three
percentage points;
6. Dismisses the remainder of the applicant's
claim for just satisfaction.
Done in French, and notified in writing on 5
December 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
S. Naismith J.-P.
Costa
Deputy Registrar President