Individual Application

The Facts

A banner reading “Katil, Hırsız AKP (Murderer and Thief AKP)” had been hung on the premises of the Freedom and Solidarity Party (Özgürlük ve Dayanışma Partisi) before the open-air meeting organised by the Justice and Development Party (AKP) in Edirne for local elections.

The police officers attempted to enter the building in order to remove the banner and arrest the applicants in accordance with the instructions of the public prosecutor. However, the applicants inside the building refused to open the door, which resulted in the use of force by the security forces.

The applicants complained about the police officers. The chief public prosecutor’s office, having issued a bill of indictment against the applicants, additionally issued a decision of non-prosecution regarding the law-enforcement officers concerned. The applicants’ subsequent appeal was dismissed by the magistrate judge.

The Applicants’ Allegations

The applicants claimed that the prohibition of ill-treatment as well as the freedom of expression had been violated on the respective grounds that they had been battered and insulted by the security forces and that the banner, in its content, had not constituted an offence.

The Court’s Assessment

1. Alleged Violation of the Prohibition of Treatment Incompatible with Human Dignity

Law enforcement officers are authorised to use force in order to, and to the extent necessary to, break any resistance encountered while performing their duties.

In the present case, the police officers attempted to enter the building in accordance with the instructions of the public prosecutor; however, the applicants did not open the door. Thus, the use of force by the officers to enter the building had a legitimate basis.

The physical force resorted to by the police officers to arrest a resisting person should be limited to the extent sufficient to break the resistance of the person. The use of force should in no way go beyond the purpose of breaking the resistance and should not amount to torture.

The police officers directly used tear gas against the applicants who were in a room inside the building. The use of such gases may be deemed lawful, provided that other appropriate means for breaking the resistance were employed in the first place but yielded no result. In the present case, tear gas was sprayed in an indoor area where there was no escape from the negative effects of the gas, and it was not considered whether it was possible to use any alternative means.

The use of tear gas in an indoor area despite the sufficient precautions taken to prevent the applicants’ escape has not been considered to correspond to a proportionate use of force.

It has been concluded that the use of physical force was not proportionate, the treatment inflicted on the applicants caused distress and humiliation, damaging their values as human beings ​​as well as their dignity, and that therefore the substantive aspect of the prohibition of treatment incompatible with human dignity was violated.

In addition, it has been observed that the applicants’ complaints against the police officers were not examined within the scope of a separate investigation, but concluded with an additional decision issued within the scope of the same investigation against the applicants, which was based on the report issued by the police officers. The chief public prosecutor’s office reached a conclusion without conducting an incident scene examination, without examining the use of tear gas in an indoor area, and without taking the statements of the police officers involved in the incident. An investigation conducted in this manner lacks due diligence and seriousness required by Article 17 of the Constitution.

The written instructions given by the authorities to the police officers stated that a visual recording was required to prevent unrealistic complaints regarding the use of allegedly disproportionate force during the use of tear gas. The applicants claimed that such a recording had been made in the course of the incident; however, that the recording had been interrupted when the police officers had started to use force. The investigation authorities failed to investigate whether these allegations were true. These shortcomings in collecting evidence within the scope of the investigation had an adverse impact on its effectiveness. Hence, no effective criminal investigation was conducted against the police officers, and therefore the procedural aspect of the prohibition of treatment incompatible with human dignity was violated.

Consequently, the Court has found a violation of the prohibition of treatment incompatible with human dignity safeguarded by Article 17 of the Constitution.

2. Alleged Violation of the Freedom of Expression

In order for any interference with the freedom of expression that is of vital importance for the functioning of democracy to comply with the requirements of the order of the democratic society, the reasons put forth by the public authorities must be relevant and sufficient.

The banner, giving rise to the impugned events, contained two harsh statements against the AKP, the ruling party. One of the said statements was “thief” which implied that the ruling party was involved in corruption, and the other was “murderer” which reflected the dissatisfaction with the security policies implemented within the scope of the fight against the PKK terrorist organisation.

It is possible only in democratic regimes, where ideas can be expressed without any obstacles, that individuals and groups can speak out their discomforts ranging from the failure of the mechanisms regulating the economy to the claims of unearned income and corruption, as well as they can demand the Government to be held accountable and the administration to be transparent.

The fine line between criticizing the State's anti-terrorism policies and supporting and legitimising the activities of the terrorist organization should always be observed. In the circumstances of the present case, there was no evidence that the word "murderer" had been expressed to justify the acts of violence committed by the PKK terrorist organization.

It can be assumed that the statements on the banner might hurt, to a certain extent, the supporters of the AKP. The impugned statements used by those hanging the banner were the reflection of their endeavours to cause a polemic and violent reactions. Freedom of expression applies not only to information and ideas acceptable by the society, but also to information and thoughts that are offensive, shocking or worrying. The Constitutional Court has acknowledged in its many judgments that the freedom of expression should be interpreted broadly so that it may allow for exaggeration and even provocation to some extent. As being indispensably important in contemporary democracies, any effort to express and disseminate ideas that do not pose a threat to the public order and do not incite violence should be tolerated.

In the present case, the police, the public prosecutor’s office as well as the first instance court that ordered the seizure of the impugned banner failed to demonstrate that the said banner had provoked the people who had gathered at the material time or that the content of the banner had been provocative and might have escalated the conflict, thereby disturbing the public order. Nor was there an element indicating that the banner had posed a threat to the public order or had had an offensive content.

The ruling party has a very broad obligation to endure criticism, no matter how unacceptable the views and statements directed against it are, as it forms public policies to a considerable extent. Regardless of the severity of the views and thoughts criticizing the policies of the ruling party, no sanction should be imposed on the people for expressing these.

It has been concluded that the impugned interference with the freedom of expression did not meet a pressing social need. Nor was it proportionate or necessary in a democratic society.

Consequently, the Court has found a violation of the freedom of expression safeguarded by Article 26 of the Constitution.