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The Case of Osman Erbil

Closed Expands Expression

Key Details

  • Mode of Expression
    Public Speech
  • Date of Decision
    June 18, 2015
  • Outcome
    Law or Action Overturned or Deemed Unconstitutional
  • Case Number
    2013/2394
  • Region & Country
    Turkey, Europe and Central Asia
  • Judicial Body
    Constitutional Court
  • Type of Law
    Constitutional Law
  • Themes
    Freedom of Association and Assembly / Protests

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Case Analysis

Case Summary and Outcome

The applicant’s right to freedom of assembly, guaranteed by Article 34 of the Constitution, had been violated. The case concerned a public demonstration in Turkey that the police claimed was illegal.


Facts

The applicant, accompanied by a group of twenty-four other people, wanted to make a press statement  in front of the Embassy of the United States of America with the aim of protesting the custody of certain heads of Labourer Party and Aydınlık Journal.

The police gave the group a warning, stating that an illegal demonstration was being held and they should disband, otherwise legal action would be taken against them. In reply, the group did not willingly disband and said: “We can protest wherever we like. The law grants us the right to protest wherever we want without taking permission in advance, therefore we will continue our protest here” As a result, twenty three of them, including the applicant were taken into custody following the intervention of the police.

Although it was a peaceful demonstration, the applicant was detained and prosecuted on charges of participating in an illegal demonstration and was sentenced to five months imprisonment. 


Decision Overview

The Court reflected on the Turkish Constitution, and stated that the right to organize meetings and demonstrations and the freedom of expression, are among the most fundamental values ​​of a democratic society. Solving problems through open debate is the very essence of democracy. Radical measures of violence against protests that advocate peaceful methods of political ideas to promote democracy and the principles of freedom of expression constitute a grave damage to any democratic society. In a democratic society based on the rule of law, anyone should be provided the opportunity to express their freedom of assembly without being in fear of the authorities. Unarmed and peaceful demonstrators assembling in a non-violent manner, should be guaranteed the right to to express their thoughts. 

Having said that, the Court said that any limitations to be imposed on the right to assembly and protest should be within the framework of the legitimate aims. Therefore the right to intervene should be balanced against the aforementioned requirements for a democratic society, with the intervention pursuing a legitimate objective. In circumstances of immediate suppression of protests made by peaceful means, with the sole purpose of crushing a demonstration which is not of one’s liking, should be considered a disproportionate restriction on the right to peaceful assembly. 

To determine whether the restriction of the right to peaceful assembly was proportionate in a democratic society and pursued a legitimate aim, the Court is to assess each case individually on its facts. Even if the applicant got a suspended sentence of five months, his right to freedom of assembly had been violated, as the sentence would keep him under the threat of penalty, and such a decision cannot be said to be moderate due to the deterrent effect it might have on the public. 


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The court has to maintain a delicate balance between rightful protests and pursuing legitimate aims. The rightful protests and the freedom of assembly must be carefully observed as not to impugn the rights of the citizens. The decision of the courts have served to expand expression, as it is allowing peaceful, un-armed protests that will allow thoughts to be expressed in a non-violent manner. This is a definite expansion, especially with Turkeys turbulent history with regards to freedom of expression.

 

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • Turk., Const. art. 34

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

Official Case Documents

Official Case Documents:


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