Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The European Court of Human Rights found that Turkey violated the right to freedom of assembly of the applicants, two of whom were human rights activists, as the administrative fines imposed on them for participating in several demonstrations had not been subject to an adequate judicial review. Domestic courts rejected the applicants’ appeals against the imposition of fines for breaching a gubernatorial decree restricting the places and times of demonstrations, holding that the fines were in conformity with the law. The European Court of Human Rights reasoned that the domestic courts had failed to carry out the required balancing act between the applicants’ right to freedom of assembly and the necessity and proportionality of the interference with that right, instead they had been satisfied to check the factual veracity of the charges against the applicants, namely that they had taken part in the demonstrations and therefore acted in breach of the decree.
Between December 2009 and February 2010, the applicants participated in several demonstrations in the city of Adana to support the workers of TEKEL, to celebrate the Women’ Day, to commemorate the massacre of leftist guerrillas in 1972 and to protest against tuition fees for higher education respectively. During these demonstrations, dozens or hundreds of people gathered, marched, holding placards and chanting slogans and sometimes blocking road traffic. All the demonstrations ended peacefully after a press statement had been read out.
The applicants were fined 43 Turkish lira (about 70 euros at that time) in respect of each demonstration pursuant to Article 32 of the Law on Misdemeanours for breaching the Gubernatorial Decree of 6 November 2009. The decree specified that those organizing a press statement to be read out on unauthorized premises and outside authorized hours, as well as those who parade carrying placards and chanting slogans on their way to the place provided for the press statement or immediately after it or during the dispersal, would be subject to judicial and administrative proceedings pursuant to Article 32 of the Law on Misdemeanours.
All three applicants appealed against the administrative fines. Their appeals were rejected by the Adana District Court, which estimated that the fines in question were in conformity with the law since the demonstrators breached the relevant decree by carrying placards, chanting slogans and blocking the traffic. One of the applicants had one of his fines removed by the district court on April 19, 2010 which, relying on Articles 10 and 11 of the European Convention on Human Rights and the judgment in Oya Ataman v. Turkey, held that the fine constituted an indirect deprivation of the applicant’s freedom of assembly.
The applicants lodged applications with the European Court of Human Rights on August 31 2010, May 2, 2011 and November 23, 2010 respectively, claiming that their rights to freedom of expression (Article 10) and of peaceful assembly (Article 11) had been violated. The second applicant also alleged a violation of his rights to a fair trial (Article 6) and to an effective remedy (Article 13).
Although the applicants alleged the violation of their rights both to freedom of expression and peaceful assembly, the Court considered that the case should be examined solely under Article 11 of the Convention.
The Court rejected the Turkish Government’s argument that the application was inadmissible because the fines were lenient and the applicants could not complain they had suffered major damage. It said that although the fines did not seem high per se, they had a significant impact on the economic situation of the applicants. Further, as human rights activists, the alleged violation was likely to have serious consequences on the exercise of their right to freedom of demonstration [para. 53]. The Court also emphasized the critical importance of freedom of peaceful assembly as a cornerstone of democratic society. [para. 54].
On the merits of the case, the applicants argued that the impugned demonstrations were totally peaceful and did not undermine public order or the rights of others. The government countered that the fines imposed pursued the legitimate aim of maintaining public order and the rights and freedoms of others since the applicants disrupted the daily life of citizens not participating in the demonstration and wanting to use public roads. Accordingly, the government argued, the fines met a “pressing social need”. The government also noted that the applicants had not been prevented or stopped during the demonstrations and that the fines were imposed ex post facto and were therefore not aimed at deterring them from freely expressing their opinions.
The Court began by reiterating that an interference was considered “necessary in a democratic society” to pursue a legitimate aim if it met a pressing social need and, in particular, if it was proportionate to the legitimate aim pursued and if the reasons adduced by national authorities to justify it were “relevant and sufficient” [para. 65]. It said that the proportionality test calls for a balancing exercise between the legitimate aims listed in Article 11 (2) and the exercise of the right to peaceful assembly. The Court considered that in order to assess whether the balancing exercise had been adequately carried out, it must review the reasoning of the domestic courts [para. 66].
The Court noted that Adana District Court had rejected the applicants’ appeal on the sole ground that the administrative fines were in conformity with the relevant law. In the Court’s view, the scope of the judicial review was very limited. In fact the judges had been satisfied with verification of the facts, namely whether the applicants had participated in the demonstrations and thus acted in violation of the gubernatorial decree.
The Court said that the domestic courts did not attempt to balance the competing interests involved, namely, the exercise of the right to demonstrate peacefully and the preservation of public order and the protection of the rights and freedoms of others. In particular, the courts did not take into account the peaceful nature of the demonstrations and the circumstances in which they took place. The applicants’ arguments to that effect were not examined [para 68]. The Court reiterate that it was the task of the domestic courts to assess the proportionality of the impugned interference by striking a fair balance between competing interests in the case.
In the absence of such balancing, the Court held that the domestic courts had failed to provide relevant and sufficient reasons to establish that the interference had been “necessary in a democratic society”. The lack of an adequate judicial review thus amounted to a violation of Article 11.
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