Balçik v Turkey  ECHR 25/02 (29 November 2007)
This decision considered the extent to which it is permissible for a state to limit the right to freedom of peaceful assembly and association in the context of a public demonstration.
On5 August 2000, the applicants assembled to read a press declaration against the introduction of ‘F-type’ prisons, which introduced solitary or small group isolation to prevent communication as a consequence of increased fears of terrorist activity and organised crime networks operating within the prison system.
Human rights organisations expressed concerns that the system would increase the risk of torture, as well as resulting in increased instances of psychological injury through isolation.
Following receipt of intelligence reports of the planned protest, members of the police force and the Rapid Intervention Force were deployed. The demonstrators were informed that their activities were unlawful as advance notice had not been provided as required by s 10 of the Assemblies and Marches Act.
After the demonstrators failed to disband, the police dispersed the group, allegedly with the use of truncheons and tear gas. The applicants and others were arrested, with two of the applicants requiring medical treatment. The applicants were subsequently detained for one day.
The applicants filed a petition against the arresting officers citing the unlawfulness of the arrest and the use of excessive force. A decision of non-prosecution in respect of the officers was issued. The public prosecutor subsequently filed a bill of indictment accusing the applicants of participating in an illegal demonstration and failing to disband.
Although acquitted, the applicants submitted a complaint to the European Court of Human Rights alleging violations of arts 3 (prohibition on cruel or degrading treatment), 9 (freedom of thought), 10 (freedom of expression) and 11 (freedom of peaceful assembly) of the European Convention on Human Rights.
Cruel Treatment or Punishment
The applicants alleged that the excessive and disproportionate use of force during their arrest amounted to ill-treatment contrary to art 3 of the Convention.
The Court deemed that such allegations must be supported by appropriate evidence. As five of the applicants failed to submit medical reports or other material to substantiate the allegations, this part of the application was inadmissible in respect of those applicants.
The allegation was deemed not to be manifestly ill-founded in respect of the complaints lodged by Ms Kirkoç and Ms Gül who submitted medical evidence of injuries sustained as a consequence of the use of force during the incident. The Court observed that as the police had received prior intelligence reports, it could not be agreed that the security forces were required to respond without preparation. It was also observed that while the group failed to disperse as required by the police, the demonstrators did not present a danger to public order. As such, the use of force amounted to a violation of art 3.
Freedom of Peaceful Assembly
All seven applicants alleged that the police intervention constituted a violation of arts 9, 10 and 11 of the Convention. The Court restricted its consideration to art 11, which provides for the right to freedom of peaceful assembly and association. While art 11(2) permits limitations on the right in the interests of national security, public safety and the like, the Court emphasised that any interference with the right will nevertheless constitute a breach unless it is ‘prescribed by law’ and is necessary in a democratic society for the achievement of one or more of the enumerated legitimate aims.
The State party suggested that since the applicants were acquitted of the charges they could no longer be regarded as ‘victims’. In this respect, the Court noted that the fact that the applicants’ acquittal occurred almost 5 years after the incident was of significance as the force employed and subsequent criminal prosecution could have deterred the applicants from participating in future protests. As such, the applicants were negatively affected by the State party’s conduct, regardless of their acquittal.
The State party argued that its interference was prescribed by law and pursued the legitimate aim of preventing public disorder. Although the Court agreed that the interference may have pursued the legitimate aim of preventing public disorder, the Court disagreed that the interference was ‘necessary in a democratic society’.
The Court observed that authorities have an obligation to implement appropriate measures to ensure the peaceful conduct of public demonstrations. The requirement that public demonstrations be subject to authorization and regulation was therefore not of itself contrary to the spirit of the article. However, while the Court noted that demonstrators should respect such applicable rules, a state is under a duty not to impose unreasonable indirect restrictions on rights, and also has positive obligations to ensure the effective enjoyment rights. As such, where demonstrators do not engage in violence, a certain degree of tolerance ought to be afforded if art 11 is not to be deprived of substantive force. Given the lack of evidence to indicate a danger to public safety posed by the demonstration in question, the fact that the authorities had prior knowledge and could have taken anticipatory measures, the authorities’ haste in seeking to end the demonstration was unwarranted.
The Court therefore concluded that the intervention was disproportionate and unnecessary for the prevention of disorder within the meaning of art 11, and that there had therefore been a violation of the right to freedom of peaceful assembly.
Implications for the Victorian Charter
Section 16 of the Charter protects an individual’s right of peaceful assembly and association. This decision affirms that public authorities must not only safeguard this right, but may be under a positive obligation to secure its effective enjoyment.
The decision may also provide guidance as to the permissible limitations of human rights under s 7 of the Charter. The decision emphasises that while a public authority may take appropriate measures to ensure the public safety of its citizens, unreasonable indirect intrusions into the right are not justified in a free and democratic society. This is particularly so where demonstrators do not engage in acts of violence.
Zoe Leyland and Jason Pobjoy, Human Rights Law Group, Mallesons Stephen Jaques