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 overturned the decision of the Court of Cassation (appellate court in Turkey) which upheld the trial court decision for convicting the Applicants who participated in a peaceful protest in a Courthouse in 2003. The European Court held that the interference with the Applicants’ right of freedom of assembly and expression was lawful under the Turkish domestic Criminal Code and there was a need to curb the freedom in the interest of public order. However, the criminal prosecution and conviction of the Applicants for a long period and the pre-trial detention for merely participating in a non-violent protest was disproportionate. The Court set aside the Turkish Court decisions and concluded that the Applicants’ rights under Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms had been violated. Accordingly, compensation and costs were awarded to the Applicants.
The application concerns the alleged breach of the applicants’ right to freedom of assembly under Article 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention) on account of their conviction for having staged a protest in a courthouse on 18.11.2003 for about an hour, during which they chanted slogans, displayed a banner, threw leaflets around, and locked themselves in one of its corridors, thereby impeding hearings that were taking place. The protestors’ act was only brought to an end when police broke in and arrested them. [paras. 1, 8].
The Applicants submitted to the trial court that they had originally planned to make a press statement in front of the courthouse, but that they had entered the building owing to the rain. The Applicants further submitted to the trial court that they had attempted to go outside again to make the press statement, but that certain civilians had attacked them with a view to lynching them, forcing them to seek shelter in the closest corridor. The door of the corridor had then been shut behind them and as the door had only had one handle, they had not been able to open it from the corridor [para. 6].
Following police arrest, the Applicants were physically examined and some of them showed signs of physical trauma in custody which was later confirmed after release from custody [para. 9, 18]. The Applicants were held in police custody for 4 days under terrorism-related charges. All but one Applicant gave police statements without having a lawyer [para. 11, 12]. Two of the Applicants – Ekram Can and Fikret Avras additionally participated in an identity parade on 21.11.2003. Later three of the Applicants (Ekram, Fikret and Mahmut Cegniz) were also taken to certain locations for a reconstruction of the event where they were not assisted by a lawyer and where they acknowledged having been involved in certain protests. The records, however, reflected different contrary versions of the events that transpired [para. 13-17]. In the statements to the public prosecutor and the Istanbul State Security Court, all Applicants except Muhlis Dogan, contested the version of the events and the additional offences to which they had confessed when being interviewed by the police [paras. 19, 20].
Subsequently, the Public Prosecutor filed a bill of indictment charging 4 of the Applicants (Ekerem, Fikret, Mahmut and Senol Akyaz) with several charges including for membership with the PKK (Workers’ Party of Kurdistan), a terrorist group, for possessing and using explosive materials and the rest of the applicants with siding and abetting a terrorist organisation [para. 21].
Before the trial court, the Applicants unanimously submitted that they planned to peacefully make a press statement in front of the courthouse and that they had been pressured into admitting crimes or ill-treated in police custody [para. 22-25]. Despite the Applicants’ lawyers being in the police station, the lawyers were not permitted to accompany their clients in the police interviews [para. 26].
In August 2005, the trial court ordered the release of all the Applicants except the 4 charged with membership with PKK [para. 28]. In 2006, the trial court sent all the Applicants to 1 year 8 months imprisonment for interrupting public services through coercion, distortion, or the commission of unlawful acts by chanting slogans, waving banners from windows and closing the door to the court corridor. All Applicants except the four named above were also sentenced to 3 years and 9 months imprisonment for aiding and abetting an armed gang [para. 29]. Ekram, Fikret, Mahmut and Senol were each sentenced to an imprisonment for 6 years and three months for charges including membership with an armed terrorist organisation, for the actions within the courthouse, procuring new members for the PKK and throwing Molotov cocktails at a police vehicle. Ekram was further convicted for possessing and using explosive materials and sentenced to an additional term of 8 years and 4 months along with a judicial fine. Mahmut and Fikret were also convicted of possessing and using explosive materials, and were each sentenced to four years and two months’ imprisonment and a judicial fine [para. 30].
In 2009, the Court of Cassation, the appellate court partially upheld and partially quashed the trial court decision which was challenged by the Applicants in an appeal. The appellate court quashed the conviction for “interrupting public services through coercion, distortion or commission of unlawful acts” and those of Ekrem Can, Fikret Avras and Mahmut Cengiz for using explosive materials while upholding the other convictions [para. 31].
In February 2010, the Applicants moved the ECtHR while the proceedings were still pending before the trial court. Later, in June 2010, the trial court once again convicted all the Applicants for interrupting activities of a public institution, and sentenced them each to 1 year and 8 months’ imprisonment. Ekrem was convicted and sentenced to 10 months imprisonment for using explosive materials on two counts. Fikret and Mahmut were also convicted for the same and were each sentenced to 5 months for throwing Molotov cocktails [paras. 32, 33]. On 2 April 2012, the Court of Cassation upheld the first-instance court’s judgment in so far as it concerned the applicants [para. 34].
The Government argued that except Mahmud Cengiz, all the other Applicants had failed to appoint a representative or submit a letter of authority. Therefore, as per Article 37 (1)(a) of the Convention, the application deserved to be struck off as the applicants demonstrated no intention to pursue the application [para. 37].
The Applicants alleged violation of Article 6 §§ 1 and 3 (c) of the Convention as the Applicants were not allowed to seek legal assistance and were compelled to waive this right during police custody. In response, the Government argued that the Applicants had voluntarily waived their right to a lawyer, except Mehmet Sahin who appointed a lawyer. Additionally, the Applicant’s convictions were not solely based on the statements made in the absence of lawyers [paras. 49 – 50].
The Government further argued that the complaint was inadmissible in view of the exception under Article 35 of the Convention and given that few Applicants had ties with PKK. The Applicants’ complaint was outside the scope of Article 11 as the restriction was prescribed by law i.e., Article 113 of the Criminal Code and it pursued the legitimate aim of protecting national security, health, morals, and preventing disorder and crime. Further, the restriction was necessary and proportionate as the Applicants did not stop their conduct despite being put to notice. The Applicants argued that the police used excessive force and intervened in a peaceful protest when no harm was caused by such protest [paras. 76-77].
The Court dismissed Government’s request to strike the case on the basis of Applicant’s failure to comply with the Rules of the Court, as amended in 2014. As the application was lodged before the Amendment to the Court’s Rules, the Rules could not be applied retrospectively [para. 39]. Nonetheless, Ms. Secuk, lawyer acting on behalf of all the 14 Applicants, informed the Court that all the correspondences were undertaken with her knowledge [para. 40].
The Court confined its analysis to: (a) convictions under Article 113 of the Criminal code and (b) convictions of Applicants Ekrem, Mahmut and Fikrat under Article 17 1(c) of the Criminal Code. The remaining aspects of the Application were rejected and not addressed by the Court as they were introduced out of time [paras. 45 – 46].
The Court considered the issue of the fairness of criminal proceedings against the Applicants under Article 6 of the Convention owing to the alleged invalidity of the waiver of their right to a lawyer when making statements to the police during the preliminary investigation stage. The Court applied the three-pronged test to examine this issue: (a) whether the Applicant waived the right to legal assistance in an unequivocal manner and whether the waiver was attended by minimum safeguards commensurate with its importance, (b) whether there were “compelling reasons” to restrict access to a lawyer; and (c) whether, despite the temporary absence of a lawyer, the overall fairness of the proceedings was ensured. [Simeonovi v. Bulgaria ([GC], no. 21980/04, §§ 112-120, 12 May 2017)].
Given the difference in facts of the Applicants’ cases, the Court divided the applicants into two groups. The first set of applicants comprised Ekrem, Mahmut and Fikret. The Court held that the validity of a waiver of right to legal assistance cannot be inferred from a mere reference to the documents which a person may have signed in police custody. The Court noted that Ekram and Fikrat had met their lawyers during their time in police custody. Further, the records testified that Ekram had informed his lawyer that he would neither make any police statement nor partake in the investigation. Further, as per a second record, Ekrem’s lawyers had been prevented from meeting Ekrem. In view of the record available, the Court did not accept the Government’s contention that the Applicants had waived their right to a counsel [para. 56]. The Court held that the Government had failed to establish beyond reasonable doubt the fact that the Applicants had unequivocally, knowingly and waived their right to access a lawyer [para. 59].
In relation to the issue as to whether there were compelling reasons to restrict the access to lawyers, the Court opined that: (a) the Government had failed to offer any compelling reason to restrict the Applicants’ access to lawyers during their police interviews/ custody, and (b) the applicable domestic legislation did not provide any reasons for such restrictions (Ruşen Bayar v. Turkey, no. 25253/08, ECHR 2019) [para. 60].
With respect to the issue of overall fairness in the proceedings adopted by the Government, the Court held that in the absence of compelling reasons offered by the government to restrict access to lawyers, the Court had to strictly scrutinise the fairness of the proceedings. The absence of Government’s explanation and justification in support of restriction to Applicants’ access to lawyers had irretrievably prejudiced the fairness of the trial. In this backdrop, the trial court and the Court of Cassation ought to have examined the circumstances surrounding the waivers and scrutinise and examine the admissibility of the self-incriminatory police statements and the evidence that the Applicants provided during the reconstruction of events [para. 62]. The Court placed reliance on a plethora of decisions to hold that the absence of compliance with procedural safeguards inevitably violates the overall fairness of the proceedings. (Beuze v. Belgium [GC], no. 71409/10,§ 145, 9 November 2018; Ibrahim and Others v. the United Kingdom, [GC],nos. 50541/08 and 3 others, § 265, 13 September 2016; Simeonovi, §§ 118 and 132; and Ruşen Bayar, § 126 (Supra), Bozkaya v. Turkey, no. 46661/09, §§ 49-54, 5 September 2017; and Türk v. Turkey, no. 22744/07, §§ 53-59, 5 September 2017) [paras. 61, 63].
The Court ultimately concluded that Article 6 §§ 1 and 3 (c) of the Convention were violated in respect of the Applicants- Ekrem, Mahmut and Fikret as the lower court had failed to examine two very crucial points: (a) whether the condition under which the applicants were alleged to waive of their right to have access to a lawyer was right and, (b) the reliance on evidence given during police custody in the absence of a lawyer to convict the Applicants, without observing the necessary procedural safeguards, rendered the trial as a whole unfair [paras. 64 – 65].
With respect to the remaining Applicants, the Court said that there was no need to examine the complaint separately under Article 6 §§ 1 and 3 (c) of the Convention as the only conviction relevant to the examination of the Applicants’ complaint is under Article 113 of the Criminal Criminal Code which can be most appropriately examined under Article 11 of the Convention.
In relation to the issue of an alleged violation of Article 11 of the Convention along with Article 10 of the Convention, the Court opined that the Applicants’ complaints should be examined under Article 11 (freedom of peaceful assembly) alone as the same would require consideration of Article 10 (freedom of speech) as one of the important facets of freedom of peaceful assembly under Article 11 (Kudrevičius and Others v. Lithuania [GC], no. 37553/05,§§ 85-86, ECtHR 2015) [para. 68].
While dealing with the issue of admissibility raised by the Government under Article 17 of the Convention, the Court rejected the contention as Article 17 is only applicable in exceptional and extreme cases which were not satisfied in the instant case. (Paksas v. Lithuania [GC], no. 34932/04, § 87, ECHR 2011) The Court relied on the case of Belge v. Turkey, no. 50171/09, §§ 34-35 where similar slogans were chanted and the Court held that such slogans did not constitute an incitement to violence [para 73]. The Court further held that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It was therefore declared admissible [para. 75].
On the merits of the case, the Court applied the three-pronged test of a due prescription under law, necessity and legitimacy. The Court held that freedom of assembly is a fundamental right in a democratic society and much like free speech it is one of the foundations of society. Therefore, restrictions imposed on it must balance legitimate aims under Article 11§ 2 and the right to free expression and assembly at public places (Navalnyy v. Russia ([GC], nos. 29580/12 and 4 others, §§ 98-103, 114-115, 120-122, and 128, 15 November 2018; Djavit An v. Turkey, no. 20652/92, § 56, ECHR 2003-III, and Barraco v. France, no. 31684/05, § 41, 5 March 2009; Ezelin v. France, 26 April 1991, § 52, Series A no. 202) Article 11 protects right to peaceful assembly only where the participants of the gathering do not have intentions to incite violence [paras. 78-79].
The Court held that there was no evidence to demonstrate that the Applicants’ protest resulted in any harm or violence or that the protestors had the intent to incite violence. On the contrary, during the hour-long protest, the people inside the courtroom were affected by the police tear gas [paras. 83-84]. While Applicants- Ekrem, Mahmut and Fikret’s involvement in previous acts of violence may be a relevant consideration to ascertain violent intent, but that by itself was not sufficient to warrant the conclusion that they had such intentions particularly when the witnesses attested that the Applicants had assured that no harm would be caused [para. 83]. The Court held that the Applicants’ actions were not such that the Applicants would be deprived of the right under Article 11 of the convention. Therefore, the Government’s objections under Article 17 of the Convention were rejected. The Court concluded that there was an interference with the Applicants’ exercise of the right to freedom of assembly due to arrest, detention, prosecution and conviction on the basis of their participation in a protest within the Courthouse [paras. 85-86]. The Court held that the interference was prescribed by domestic law i.e., Article 113§ 1 of the Criminal Code and the law satisfied the quality of law requirements under the Convention.
With respect to the issue of necessity in a democratic society for interference with rights under Article 11 and 10 of the Convention, the Court held that even though the Applicants’ protest concerned an issue of public interest, the manner in which they opted to convey their message and exercised their rights under Article 11 of the Convention not only disturbed public safety and constituted a risk in respect of the protection of the rights and freedoms of others present at the Courthouse, but also disrupted an essential public service – namely the orderly administration of justice (Öğrü v. Turkey, no. 19631/12, § 25, 17 October 2017). The interference in the instant case corresponded to a pressing social need [para. 90]. While the Contracting States enjoy a great degree of discretion in assessing the necessity of taking measures to restrict illegal conduct, the same, however, is not unlimited and has to be proportionate with the aim pursued. Generally, peaceful demonstrations should not entail a criminal consequence [paras. 90-92]. In the present case, given that the Applicants’ conduct was not violent and caused no damage, the domestic court failed to justify the prison sentencing of each of the Applicants. The lengthy prison sentence was not proportionate to the legitimate aims of protecting public safety and the rights and freedoms of others or for preventing disorder [para. 93]. Further, the Applicants were held in pre-trial detention despite a valid exercise of rights under Article 11 of the Convention. Accordingly, the Court held that the interference with rights under Article 11 read with Article 10 of the Convention was not necessary in a democratic society. Therefore, there was a violation of Article 11 of the Convention [paras. 93-96].
By application of Article 41 of the Convention, the Court awarded compensation of EUR 7,500/- plus tax to each Applicant. Further, EUR 2000 was awarded jointly for the costs of the proceedings [paras. 104-105].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision of the Court expands expression. The court was conscious of the fact that while rights under Article 11 read with Article 10 of the Convention may be curbed, the restrictions imposed must be necessary and proportionate to the aim sought to be achieved. Further, the Court reiterated the general principle that for peaceful and non-violent protests or congregations states should not resort to criminal prosecution or conviction of protestors as that would stymie the invaluable freedoms guaranteed under the Convention.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
The Convention for the Protection of Human Rights and Fundamental Freedoms, Article 6
Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10
Convention for the Protection of Human Rights and Fundamental Freedoms, Article 11
Convention for the Protection of Human Rights and Fundamental Freedoms, Article 17
The Convention for the Protection of Human Rights and Fundamental Freedoms, Article 35
Convention for the Protection of Human Rights and Fundamental Freedoms, Article 37
Convention for the Protection of Human Rights and Fundamental Freedoms, Article 41
Convention for the Protection of Human Rights and Fundamental Freedoms, Article 44
Akdağ v. Turkey, no.75460/10, ECHR 2019
Beg S.p.a. v. Italy, no. 5312/11, ECHR 2021
Belek and Velioğlu v. Turkey, no. 44227/04, ECHR 2015
Beuze v. Belgium [GC], no. 71409/10, ECHR 2018
Bozkaya v. Turkey, no. 46661/09, ECHR 2017
Turkey, The Criminal Code of the Republic of Turkey, Article 113
Turkey, The Criminal Code of the Republic of Turkey, Article 314
Turkey, The Criminal Code of the Republic of Turkey, Article 174
Turkey, The Criminal Code of the Republic of Turkey, Article 170
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