No Violation Of The Right To Organize Meetings And Demonstrations Due To The Refusal To Allow May 1 Celebrations In Taksim Square
Events
On 25/4/2016, the applicant trade union notified the Governorate to hold a public commemoration and celebration on 1 May Labor and Solidarity Day in Taksim Square. The Governorate rejected the request on the grounds that Taksim Square was not one of the eight areas designated for use in May 1 Labor Day events and on the grounds of public order and public safety. In the lawsuit filed for the annulment of the aforementioned decision, the court dismissed the case on the grounds that there was no contradiction to the law in the administrative action based on the fact that Taksim Square was not among the meeting and demonstration areas designated for 2016 and public order and security. The applicant Trade Union filed an appeal against the dismissal decision and the Regional Administrative Court rejected the appeal.
Allegations
The applicant claimed that the refusal to allow him to celebrate in Taksim Square on 1 May violated his right to organize meetings and demonstrations.
The Court’s Assessment
A. Background Information
On 20/7/2015, 34 people lost their lives and 73 others were injured in a suicide bomb attack allegedly carried out by DAESH during a press statement on the conflicts in Syria in Suruç. Following this attack, Turkey was subjected to numerous terrorist attacks. Until December 2016, there were numerous terrorist attacks in many districts of Istanbul.
B. Evaluation of the Concrete Event
May Day, when large gatherings and demonstrations are organized, is a day when public authorities take more measures to protect public order than usual. Therefore, on such days, it would be inevitable that the measures taken for the protection of public order would conflict with the fundamental rights of individuals. According to the Constitutional Court, the interference in question cannot be accepted as compatible with the requirements of the democratic social order unless it can be shown that the restriction arises from a compelling social need and is proportionate. Therefore, the issues relied on in the justification of the administration to limit the right to choose the place and the limited access to the square should be examined.
The General Assembly of the Constitutional Court found Article 6 of the Law No. 2911 on Meetings and Demonstration Marches, which authorizes the highest local administrative authority to determine the place and route of meetings and demonstration marches, to be compatible with the Constitution. However, the Constitutional Court found that the objective meaning of the rule does not allow for the complete disregard of the freedom of individuals to choose the place and route of meetings and demonstration marches. In its decision, the Constitutional Court emphasized that the location of the meeting or the route of the demonstration march is of great importance in order to convey the views to be expressed to the interlocutors and to achieve the purpose of the meeting. For this reason, the Court stated that the local authority must exercise its authority in a manner that respects the freedom of the organizers to choose the venue. According to the Constitutional Court, it is a requirement of the principle of proportionality to observe the delicate balance between the individual interest of individuals wishing to organize meetings and demonstrations in having the freedom to choose the venue and the public interest in protecting public order and the rights of third parties.
Article 6 of the Law No. 2911 does not exclude the highest local authority from determining the venue of the meeting or demonstration, taking into account the purpose, size, nature and number of participants, in order to protect public order and the rights of third parties. As a matter of fact, public areas are effective and natural places where meetings and demonstration marches are organized. They also serve certain social and cultural needs of the public such as rest, travel and entertainment. Therefore, these areas may lead to the conflict of different freedoms. In the event of a conflict between fundamental rights and freedoms, a reasonable balance should be struck between the freedoms and a way should be adopted in which both are protected to the extent necessary. In this context, if the organization of an assembly and demonstration march in a public area restricts the rights and freedoms of others, an appropriate solution should be found to ensure that both groups can exercise their rights instead of prohibiting the assembly and demonstration march in that area. In this context, it is possible for the local authority to determine different places and routes and to stagger these places according to the size and purpose of the meeting, if necessary, in order to ensure a balance between public interest and individual interest.
The administration allowed a limited number of representatives of the trade unions that applied to the administration to hold a commemoration meeting in Taksim Square on 1 May Labor and Solidarity Day, taking into account the symbolic importance for workers of the commemoration of Labor Day in Taksim Square. Indeed, many representatives of non-governmental organizations and political parties participated in this event. Within this framework, a group of approximately one hundred people carrying flags and banners of some organizations and trade unions, including the applicant trade union, marched and made a press statement on 29/4/2016 on Beyoğlu İstiklal Street as part of the celebrations of 1 May 2016 Labour and Solidarity Day. In addition, some trade union representatives organized events in the square on 30/4/2016 and 1/5/2016.
On the other hand, the Governor’s Office also offered alternative assembly and demonstration areas for celebrations in different meeting areas. As a matter of fact, the request of the Organizing Committee, which included the general secretary of the applicant trade union, to hold a May Day celebration at a venue designated by the administration was approved by the Governorate.
The Administration restricted the right to assembly and demonstration by assessing that the security reasons for holding a large-scale meeting in Taksim Square were clearly more severe than the disadvantage of banning the meeting. However, the right was not completely abolished, but rather narrowly restricted by proposing an alternative venue and allowing a certain number of people to hold a commemoration event in Taksim Square. In this context, it is understood that a fair balance has been established between public order and security and the right to organize meetings and demonstrations, and a way has been adopted in which both rights are protected to the extent necessary.
As a result, it has been concluded that the restriction imposed on the right to organize meetings and demonstrations in the concrete case does not render the said right meaningless, meets a compulsory social need and is proportionate.
For the reasons explained above, the Constitutional Court ruled that the right to organize meetings and demonstrations was not violated.