Last Updated on March 8, 2022 by LawEuro
Information Note on the Court’s case-law 260
March 2022
Ekrem Can and Others v. Turkey – 10613/10
Judgment 8.3.2022 [Section II]
Article 11
Article 11-1
Freedom of peaceful assembly
Disproportionately lengthy pre-trial detention and prison sentences for involvement in non-violent, albeit disruptive, courthouse protest: violation
Facts – The fifteen applicants were arrested, placed in pre-trial detention, prosecuted and convicted for having staged a protest inside a courthouse in November 2003. In particular, they chanted slogans, displayed a banner, threw leaflets around, and locked themselves in one of the courthouse’s corridors, which led to the cancellation of some of the hearings scheduled for that day. They were sentenced to one year and eight months’ imprisonment.
Law – Article 11 read in the light of Article 10: It transpired from the case-file that the applicants’ conduct had not been violent and had not caused damage. There had been no evidence of any violent intention on their part and no weapons or any other dangerous material had been found on them at the time of their arrest.
Notwithstanding, a number of civilians and court officials had been confined for approximately one hour inside the offices and hearing rooms as a result of the protest and had been affected by the tear gas that the police had administered when dealing with the incident. The impugned protest had thus negatively impacted the orderly provision of an essential public service, namely judicial services. It had disturbed public order for a period of an hour and might have caused fear and discomfort in those who had been in the corridor’s vicinity. In the absence of any violent intention or violent conduct on the part of the applicants, however, those factors alone did not suffice for the impugned protest to fall outside the scope of Article 11 and the applicants’ actions had not been such as to warrant the application of Article 17: it was not shown that they had relied on the Convention to engage in activity or in acts aimed at the destruction of any of the rights and freedoms set forth in it.
Consequently, there had been an interference with the applicants’ exercise of their right to freedom of assembly on account of their arrest, detention, prosecution and conviction on the basis of their participation in a protest. That interference had a legal basis under the domestic law which satisfied the Convention’s quality-of-law requirements. It had further pursued the legitimate aims of protecting public safety and the rights and freedoms of others, and of preventing disorder.
Although the protest concerned an issue of public interest, the manner in which the applicants had opted to convey their message and exercised their rights under Article 11 had not only disturbed public safety and constituted a risk in respect of the protection of the rights and freedoms of “others” present at courthouse, but had also disrupted the orderly administration of justice – an essential public service. The interference thus corresponded to a pressing social need.
The Contracting States enjoyed a wide but not unlimited margin of appreciation in their assessment of the necessity of taking measures to restrict illegal conduct, in cases where it was combined with the exercise of freedom of expression or association and was disrupting ordinary life and other activities to a degree exceeding that which was inevitable in the circumstances. Such conduct could not enjoy the same privileged protection under the Convention as political speech or debate on questions of public interest or the peaceful manifestation of opinions on such matters. Those considerations were equally valid in the context of the present case where the applicants had staged their protest in a courthouse in combination with other acts that were, albeit non-violent, capable of seriously disturbing the orderly administration of justice.
A peaceful demonstration should not, in principle, be rendered subject to the threat of a criminal sanction and notably to deprivation of liberty. In the present case the Court could not discern, including from the domestic courts’ decisions, any justification for sentencing each of the applicants to such a particularly severe prison sentence on account solely of their behaviour at the courthouse. Although sanctions for the applicants’ actions might have been warranted by the demands of public order, such lengthy prison sentences had not been proportionate to the legitimate aims pursued. In addition, all the applicants had been held in pre-trial detention for a very long period – at least one year, eight months and fourteen days – on the basis, notably, of acts that fell within the purview of Article 11, notwithstanding the disturbance caused by their protest in the courthouse. Accordingly, the interference with their right to freedom of assembly under Article 11, considered in the light of Article 10, had not been “necessary in a democratic society”.
Conclusion: violation (unanimously).
The Court also found, unanimously, that there had been a violation of Article 6 §§ 1 and 3 (c) in respect of two of the applicants. In particular, the domestic courts’ failure to examine the conditions surrounding the alleged waiver of their right to a lawyer while in police custody and the use that they had made of evidence given in the absence of a lawyer to convict them, without observing the necessary procedural safeguards, had rendered the trial as a whole unfair.
Article 41: EUR 7,500 to each applicant in respect of non-pecuniary damage for the violation found under Article 11. The finding of a violation of Article 6 §§ 1 and 3 (c) constituted sufficient just satisfaction in respect of the two applicants; in this connection and in respect of all the applicants, the Court noted that the Current Code of Criminal Procedure allowed the reopening of the domestic proceedings.
(See also Taranenko v. Russia, 19554/05, 15 May 2014, Legal Summary; Kudrevičius and Others v. Lithuania [GC], 37553/05, 15 October 2015, Legal Summary)
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