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Disk and Kesk v. Turkey, Application No. 38676/08

SECOND SECTION

CASE OF DİSK AND KESK v. TURKEY

(Application no. 38676/08 )

JUDGMENT

STRASBOURG

27 November 2012

FINAL

29/04/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.

DİSK AND KESK v. TURKEY JUDGMENT 1

In the case of Disk and Kesk v. Turkey ,
The European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Ineta Ziemele , President,
Danutė Jočienė ,
Dragoljub Popović ,
Isabelle Berro -Lefèvre ,
András Sajó ,
Işıl Karakaş ,
Guido Raimondi , judges,
and Stanley Naismith , Section Registrar ,
Having deliberated in private on 23 October 2012 ,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 38676/08) against the
Republic of Turkey lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by the DİSK ( Devrimci İşçi Sendikaları
Konfederasyonu – Confederation of Revolutionary Workers ’ Trade Unions )
and the KESK ( Kamu Emekçileri Sendikaları Konfederasyonu –
Confederation of Public Employees ’ Trade Un ions ) on 13 August 2008.
2. The applicants were represented by Mr N. Okcan, Mr M. İriz,
Ms A. Becerik, Ms O. Ataman, Mr Ö. Eryılmaz, and Ms. O. Aydın, lawyers
practi sing in Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
3. On 18 June 2009 the application was communicated to the
Government. It was also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
THE FACTS
I. THE C IRCUMSTANCES OF THE CASE
4. On 29 April 2008 the applicants jointly notified the Beyoğlu district
governor that they would be gathering before the Taksim Atatürk memorial
on 1 May 2008 at 1 p.m. to celebrate Labour Day and commemor ate their
friends who had lost their lives during the demonstrations of 1 May 1977.
5. On 30 April 2008 the Beyoğlu district governor authorised a gathering
at the requested location for representatives of trade unions only. The

2 DİSK AND KESK v. TURKEY JUDGMENT
district governor specifically indicated that a demonstration on a larger scale
at the said location was not authorised.
6. Subsequently, certain government authorities, including the Minister
of the Interior and the Government ’s spo kesman, as well as the Istanbul
Governor ’s office , issued press statements, declaring that they were in
possession of intelligence reports which precluded them from authorising
any demonstration in Taksim Square, for security reasons. The authorities
held that any demonstration held in Taksim on 1 May 2008 would be
unlawful and unconstitutional on account of possible provocations and
disruption of traffic and public order. They further stated that they were
going to take extensive security measures on 1 May 2008, including
shutting down certain schools in the nearby districts, stopping the operation
of ferries and subways, blocking the roads leading to Taksim Square and
deploying extra police for that day. As alternative locations, the Istanbul
Governor ’s of fice indicated four other squares for the demonstration,
namely two on the European side and two on the Anatolian side of Istanbul.
7. On 30 April 2008 the first applicant lodged a complaint against the
Governor of Istanbul with th e Istanbul public prosecutor, accusing him of
denying the trade unions their right to assembly in a discriminatory manner.
The first applicant complained that there was no justification for denying
them access to Taksim Square on Labour Day, when the same location was
available for other large -scale demonstrations and celebrations
(investigation no. 2008/20905).
8. At approximately 6 a.m. on 1 May 2008, members of the DİSK and
KESK began gathering in front of the DİSK headquarters located in the
district of Şişli for Labour Day celebrations. At around 6.30 a.m. the police
asked the group to disperse, warning them that they were acting in violation
of the Assemblies and Marches Act ( Law no. 2911). The members of the
group refused, arguing that they were merely waiting in front of the DİSK
headquarters, which was a pedestrian area, and that they were not violating
the said law in any way. The police, however, proceeded to disperse the
group, by spraying them with pressurised water, paint and tear gas, both
inside and outside the DİSK building.
9. Similar police interventions oc curred over the next couple of hours
with increasing intensity. Some of the demonstrat ors were injured as a result
of the use of force by the police. While the injured demonstrators were
trying to reach the nearby Şişli Etfal Hospital for medical care, they were
chased by the police and were subjected to gas attacks even within the
hospital premises. Some members of the DİSK were arrested.
10 . At approximately 10.30 a.m. the group of demonstrators broke up of
its own accord to forestall any further violence.
11 . On 2 May 2008 the Chief of Şiş li Etfal Hospital gave a statement to
the police, stating that on 1 May 2008 around 20 -30 demonstrators had
entered the hospital and opened a banner. Subsequently, police officers had
also entered the hospital premises in their pursuit and used a gas bomb in

DİSK AND KESK v. TURKEY JUDGMENT 3

the hospital ’s garden to neutralise the demonstrators. He further explained
that one of the police officers had mistakenly sat on a gas bomb and
exploded it in the police car parked at the entrance of the Emergency
Service; as a result staff working in the Emergency Service as well as some
of the patients had been affected. He concluded by stating that the gas bomb
was not deliberately thrown in the hospital building.
12 . On an unspecified date after 1 May 2008, the director of t he DİSK,
along with other persons, lodged a complaint with the Istanbul public
prosecutor against various authorities, including the office of the Prime
Minister, the Minister of the Interior, the Minister of Justice, the Istanbul
Governor ’s office, the He ad of the Istanbul Security Directorate and the
police officers involved in the incidents of 1 May 2008, accusing them of
breach of the right to freedom of assembly and a disproportionate use of
force (investigation no. 2008/59361). On an unspecified date, the public
prosecutor issued a decision of lack of jurisdiction in connection with the
complaint lodged against the Istanbul Governor and the Head of Istanbul
Security Directorate. The case file was accordingly transferred to the Public
Prosecutor ’s Offic e at the Court of Cassation. Pursuant to the terms of Law
no. 4483, the public prosecutor at the Court of Cassation sought
authorisation from the Minister of the Interior to prosecute the Istanbul
Governor and the Head of Istanbul Security Directorate. On an unspecified
date, the Minister refused to do so. Consequently, on 8 April 2009 the
public prosecutor decided not to proceed with the case. This decision was
notified to the applicants ’ lawyer on 16 April 2009. The applicant ’s appeal
lodged against this decision was further dismissed by the Supreme
Administrative Court as the court held that pursuant to domestic legislation,
no appeal was possible against the decision of 8 April 2009.
13 . Regarding the complaint lodged against the Prime Minister, the
Minister of the Interior, and the Minister of Justice, on 1 February 2009 the
Istanbul public prosecutor delivered a decision of non -prosecution, holding
that pursuant to the Constitution, t he Prime Minister, the Minister of the
Interior, and the Minister of Justice could not be held liable for their actions
in the course of their duties. This decision was served on the applicants ’
lawyer on 24 February 2009. The applicants ’ appeal was reject ed on
22 May 2009 by the Sincan Assize Court, which held that no objection
could be lodged against the decision of the public prosecutor dated
1 February 2009.
14 . On 5 May 2008 the representative of the first applicant handed to t he
Şişli public prosecutor an undetonated gas bomb belonging to the police
force, found inside the DİSK headquarters following the events of 1 May
2008.
15 . On 19 June 2008, upon a complaint lodged by the Istanbul
Governor ’s office , the Beyoğlu public prosecutor questioned the director of
the DİSK in relation to the events that took place on 1 May 2008
(investigation no. 2008/9241). It appears from the documents in the case file

4 DİSK AND KESK v. TURKEY JUDGMENT
that no prosecution was initiated against the applican ts in relation to the
events of 1 May 2008.
II. RELEVANT DOMESTIC LAW
A. The Constitution
16 . Article 34 of the Constitution provides:
“Everyone has the right to hold unarmed and peaceful meetings and demonstration
marches withou t prior permission.

The formalities, conditions, and procedures governing the exercise of the right to
hold meetings and demonstration marches shall be prescribed by law.”
B. The Demonstrations Act (Law no. 2911)
17 . Section 2 2 of Law No. 2911 prohibits demonstrations and
processions on public streets, in parks, places of worship and buildings in
which public service s are based. Demonstrations organised in public squares
ha ve to comply with security instructions and not disrupt individual s’
movement s or public transport. Finally, Section 24 provides that
demonstrations and processions which do not comply with the provisions of
this law w ill be dispersed by force on the order o f the governor ’s office and
after the demonstrators are warned.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION
18 . The applicants alleged that the police intervention in the Labour Day
Celebrations of May 2008 consti tuted a violation of their right to private
life, freedom of expression and freedom of assembly. In this respect, they
invoked Articles 8, 10 and 11 of the Convention.
19 . The Court considers that the applicants ’ complaints should be
examined from the standpoint of Article 11 alone, which reads in so far as
relevant:
“1. Everyone has the right to freedom of peaceful assembly…
2. No restrictions shall be placed on the exercise of these rights other than such as
are prescribed by law and are necessary in a democratic society in the interests of
national security or public safety, for the prevention of disorder or crime, for the

DİSK AND KESK v. TURKEY JUDGMENT 5

protection of health or morals or for the protection of the rights and freedoms of
others…”
A. Admissi bility
20 . The Court notes that the Government have not raised any
preliminary objections in respect of Article 11 of the Convention. It notes
that this complaint is not manifestly ill -founded within the meaning of
Article 35 § 3 ( a) of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Whether there was an interference with the applicants ’ exercise of
their freedom of peaceful assembly
21 . The Government contested the applicants ’ allegations and
maintained that there had been no interference with the applicants ’ rights
under Article 11 of the Convention.
22 . The Court notes that as a result of th e police intervention, the
applicants were not able to exercise their right to peaceful assembly (see
paragraph 10 above), and was thus negatively affected. There has therefore
been an interference with their rights under Article 11 of the Convention.
2. Whether the interference was justified
23 . The Government stated that the meeting in issue had been organised
unlawfully. They pointed out that the second paragraph of Article 11 of the
Convention imposes limits on the right of peaceful assembly in order to
prevent disorder. In their view, the organisation of the Labour Day
celebrations in Taksim would have caused major disruption to public life.
While the Istanbul Governor ’s office had pointed out that a meeting in
Taksim Squar e would not be allowed, as an alternative, four other squares
had been indicated, namely two on the European side and two on the
Anatolian side of Istanbul. The Government maintained that the gathering
of the representatives of the trade unions was permitt ed by the Beyoğlu
district governor, and as a result a small group of representatives could have
celebrated Labour Day at the Taksim Square to commemorate their friends
who had lost their lives during the demonstrations of 1 May 1977. The
Government furthe r stated that they had received intelligence reports that a
terrorist organisation would interfere in the Labour Day celebrations to
provoke commotion. They also maintained that there were terrorists in the
DISK ’s headquarters and stones were thrown from t he windows towards the
police force. Referring to the testimony of the Chief of Şişli Etfal Hospital,

6 DİSK AND KESK v. TURKEY JUDGMENT
the Government stated that it was the demonstrators who had attacked the
hospital and the police had intervened to secure the area.
24 . The Court reiterates that an interference will constitute a breach of
Article 11 of the Convention unless it is “prescribed by law”, pursues one or
more legitimate aim under paragraph 2 of that provision and is “necessary in
a democratic society” fo r the achievement of those aims.
25 . In this connection, it is noted that the interference in the present case
had a legal basis, namely Sections 22 and 24 of the Meetings and
Demonstration Marches Act, and was thus “prescribed by law” within the
meaning of Article 11 § 2 of the Convention. As regards a legitimate aim,
the Government submitted that the interference pursued, among others, the
legitimate aim of preventing public disorder, and the Court finds no reason
to differ.
26 . Turning to the question of whether the interference was “necessary
in a democratic society”, the Court refers in the first place to the
fundamental principles underlying its judgments relating to Article 11
(see Djavit An v. Turkey , no. 20652/92, §§ 56 -57, ECHR 2003 -III; Piermont
v. France , 27 April 1995, §§ 76 -77 , Series A no. 314 ; and Plattform “Ärzte
für das Leben” v. Austria , 21 June 1988, § 32 , Series A no. 139 ). It is clear
from this case -law that the authorities have a duty to take appropriate
measures with regard to lawful demonstrations in order to ensure their
peaceful conduct and the safety of all citizens (see Oya Ataman v. Turkey ,
no. 74552/01, § 35 , ECHR 2006 -XIII ).
27 . The Court also notes that States must not only safeguard freedom of
peaceful assembly, but must also refrain from applying unreasonable
indirect restrictions upon that right. Finally, it considers that, although the
essential object of Article 11 is to protect the individual agains t arbitrary
interference by public authorities in the exercise of the rights protected,
there may also be positive obligations to secure their effective enjoyment
(see Djavit An , cited above, § 57, and Oya Ataman , cited above, § 36).
28 . The Court recalls that these principles are also applicable with regard
to demonstrations and processions organised in public areas. It notes,
however, that it is not contrary to the spirit of Article 11 if, for reasons of
public order and national security, a priori , a High Contracting Party
requires that the holding of meetings be subject to authorisation and
regulates the activities of associations (see Djavit An , cited above,
§§ 66 -67).
29 . The Court recalls that the Cont racting States can impose limitations
on hold ing a demonstration in a given place for public security reasons.
Nevertheless, although a demonstration in a public place may cause some
disruption to ordinary life, including disruption of traffic, it is impor tant for
the public authorities to show a certain degree of tolerance towards peaceful
gatherings if the freedom of assembly guaranteed by Article 11 of the
Convention is not to be deprived of its substance (see Galstyan v. Armenia ,

DİSK AND KESK v. TURKEY JUDGMENT 7

no. 26986/03, §§ 116 -11 7, 15 November 2007 , and Bukta and Others
v. Hungary , no. 2 5691/04, § 37, ECHR 2007 -III).
30 . The Court firstly notes that no official investigation was conducted
into the incident at the domestic level. In this connection, it observes that
the criminal complaints lodged by the applicants were to no avail , since no
authorisation was granted by t he Minister of the Interior for the prosecution
of the Istanbul Governor or the Head of the Istanbul Security Directorate
(see paragraph 12). In the absence of a domestic investigation, the Court is
called upon to decide on the basis of the material submit ted by the Parties.
31 . In the present case, it is clear from the documents in the case file that
as soon as the authorities were informed about the intention of the
applicants to celebrate Labour Day in the Taksim Square, they too k
extensive measures to deter the demonstration and made declarations that
the police would use force against the demonstrators if they insisted on
holding the demonstrations in the Taksim Square. To this end, on 1 May
2008, upon the order of the Istanbul Governor, operations of ferries and
subways were stopped, the roads leading to Taksim Square were blocked
and extra police were deployed to the area to block entrance to Taksim. The
Court also observes that four alternative venues were proposed by the
Ista nbul Governor to hold the Labour Day celebrations. In this connection,
it notes that the Taksim Square, where the applicants had intended to hold
their demonstration, is in the heart of the city, and a large -scale
demonstration could indeed cause disruptio n to public life. Nevertheless, the
Court also takes note that in 1977, during Labour Day Celebrations in the
Taksim Square 37 people had died when a clash had broken out. As a result,
the Taksim Square became a symbol of that tragic event, and it is for t his
reason that the applicants insisted in organising the Labour Day celebrations
in Taksim in commemoration. In this connection, the Court is also informed
that since 2010, Labour Day has become a national holiday in Turkey and
celebrations in Taksim Squa re are now permitted.
32 . Having said that, the Court considers that in the present case it is not
called on to pronounce on the choice of the venue of the demonstrations, or
to determine whether or not there was a security risk if a demonstration
were to be held in the Taksim square, as alleged by the Government, since
in any case the police intervention took place in the early hours of 1 May
2008, even before the demonstration commenced. The Court should
therefore determine whethe r the intervention of the security forces was
proportionate to the aim pursued.
33 . The Court observes that on the day of the incident, members of the
DISK, certain members of Parliament and journalists started gathering in
front o f the DISK ’s headquarters building in Şişli. The police intervention
commenced at 6.30 a.m., before the demonstrators started their march.
Although in their observations the Government submitted that members of
an illegal organisation threw stones at the p olice, the Court notes that there
is no evidence to support this allegation. In this connection, the Court notes

8 DİSK AND KESK v. TURKEY JUDGMENT
that no proceedings were initiated against the applicants or other members
of the applicant confederations in connection with this incident. Ac cording
to the information in the file, there is also nothing to suggest that the group
waiting in front of the DISK headquarters presented a danger to public order
or engaged in violent acts. There is also no information in the file that the
police had en countered any violent or active physical resistance which
would explain the use of such an extreme use of force. Indeed, the security
forces tried dispersing the people in front of the DISK Headquarters by
using gas bombs, paint sprays and pressur ised wate r. Several people were
chased by police officers and beaten.
34 . The Court further notes with concern that the police officers threw a
gas bomb in the Şişli Etfal Hospital premises while chasing the
demonstrators. The Government ma intained that some of the demonstrators
had attacked the hospital and that they had tried securing the area by using a
gas bomb. In this respect, they submitted the testimony of the Chief of
Hospital (see paragraph 11). According to this statement, some
de monstrators tried hiding in the hospital, opening a banner, and the police
threw a gas bomb in the hospital ’s garden in their pursuit. The Court recalls
that it has recognised that the use of gas bombs against individuals can
produce several serious health problems and expressed concern over the use
of such gases in law enforcement (see Ali Güneş v. Turkey , no. 9829/07 ,
§§ 34 -37, 10 April 2012). It therefore considers that the use of a gas bomb
in hospital premises cannot be considered as necessary or propo rtionate in
the circumstances of the present case.
35 . The Court observes that as a result of the forceful intervention of the
police officers, the demonstrators broke up of their own accord at 10.30 a.m.
to forestall any further violence, and consequently they were not able to
participate in the Labour Day celebrations.
36 . In the Court ’s view, where demonstrators do not engage in acts of
violence, it is important for the public authorities to show a certain degree of
tolerance towards peaceful gatherings if the freedom of assembly
guaranteed by Article 11 of the Convention is not to be deprived of all
substance (see Nurettin Aldemir and Others v. Turkey , nos. 32124/02,
32126/02, 32129/02, 32132/02, 32133/02, 32137/02 and 32138/02, § 46,
18 December 2007 ).
37 . In view of the above, the Court considers that in the instant case the
forceful intervention of the police officers was disproportionate and was not
necessary for the prevention of disorder.
38 . There has therefore been a breach of Article 11 of the Convention in
the instant case.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
39 . The applicants complained under Article 13 of the Convention that
they did not have an effective remedy in relation to their c omplaint

DİSK AND KESK v. TURKEY JUDGMENT 9

concerning the breach of their right to peaceful assembly. They also argued
under Article 14 of the Convention, in conjunction with Article 11, that they
had suffered discrimination in the enjoyment of their freedom of assembly
as they had been re fused permission to organise a demonstration in Taksim
Square for public order reasons, while other mass demonstrations could be
celebrated at the same location.
40 . The Court notes that these complaints are linked to the ones
exam ined above and must likewise be declared admissible.
41 . However, having regard to the facts of the case, the submissions of
the parties and its finding of a violation of Article 11 above, the Court
considers that it has examined t he main legal question raised in the present
applications. It concludes, therefore, that there is no need to give a separate
ruling on the remaining part of the application (see Güler and Öngel
v. Turkey , nos. 29612/05 and 30668/05 , § 36, 4 October 2011).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
42 . The applicants claimed a total of 400,000 euros (EUR) in respect of
non -pecuniary damage. Furthermore, without submitting any supporting
documents, they claimed EUR 2 0,000 in respect of pecuniary damage for
the damage caused at the Disk Headquarters during the incident.
43 . The Government contested the claims.
44 . The Court notes that the pecuniary claims of the applicants are not
supported by any document; it therefore rejects this claim. With regard to
non -pecuniary damage, it considers that the applicants are sufficiently
compensated by the finding of a violation of Ar ticle 11 of the Convention
(see Oya Ataman , cited above, § 48 , and Saya and Others v. Turkey ,
no. 4327/02, § 54, 7 October 2008).
B. Costs and expenses
45 . The applicant confederations did not make a specific claim for costs
and expenses. They have solely referred to a legal fee agreement, according
to which they would pay their lawyers 10% of the just satisfaction awarded
by the Court .
46 . The Government contested the claim.
47 . According to the Court ’s case -law, an appl icant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possessi on and the above criteria, the Court considers it reasonable to award
a total sum of EUR 1,000 to both applicants, covering costs under all heads.

10 DİSK AND KESK v. TURKEY JUDGMENT
C. Default interest
48 . The Court considers it appropriate that the default interes t rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Declares the application admissible unanimously;

2. Holds unanimously that there has been a violation of Article 11 of the
Convention;

3. Holds unanimously that there is no need to examine separately the
applicants ’ complaints under Articles 13 and 14 of the Convention;

4. Holds by 5 votes to 2 that the finding of a violation of Article 11 in itself
constitutes sufficient just satisfaction for the non -pecuniary damage
sustained by the applicants;

5. Holds unanimously
(a) that the respondent State is to pay the applicants, within three
months from the date on which the judgment becomes fi nal in
accordance with Article 44 § 2 of the Convention, a total of EUR 1,000
(one thousand euros), plus any tax that may be chargeable to the
applicants, in respect of costs and expenses, to be converted into the
currency of the respondent State at the rate applicable at the date of
settlement;
(b) that from the expiry of the above -mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;

6. Dismisses unanimously the remainder of the applicants ’ claim for just
satisfaction.
Done in English, and notified in writing on 27 November 2012 , pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Ineta Ziemele
Registrar President

DİSK AND KESK v. TURKEY JUDGMENT 11

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of
the Rules of Court, the following separate opinions are annexed to this
judgment:
(a) concurring opinion of Judge Sajó .
(b) joint dissenting opinion of Judge Ziemele and Judge Karakaş .
I.Z .
S.H. N.

12 JUDG MENT DİSK AND KESK v. TURKEY – SEPARATE OPINION S

CONCURRING OPINION OF JUDGE SAJÓ
I agree with my brethren that the right to demonstrate of the applicant
trade unions has been violated in the present case. In order to avoid any
misunderstanding I find it useful to add a few points of clarification.
Whilst the victim status of non -governmental organisations has been
reco gnised in our jurisprudence (see, for example. Rassemblement Jurassien
Unité Jurassienne v. Switzerland , no. 8191/78, Commission decision of
10 October 1979 , Decisions and Reports (DR) 17, p. 108, and Christians
against Racism and Fascism v. the United Kin gdom , Commission decision
of 16 July 1980, DR 21, p. 153), this has primarily been in the context of a
refusal to allow a demonstration. In the present case, however, the finding
of a violation with regard to the two applicant trade unions does not concern
a ban on having a demonstration. The applicants, through the
representatives of the respective trade unions, were expressly granted the
right to pay homage in Taksim Square to those killed there in 1977 (see
paragraph 5). In the light of the nature of the violation (see below) it is clear
that, by restricting the right to demonstrate of those present in front of the
DİSK HQ, the applicant trade unions ’ right of assembly was breached,
albeit in a different regard, and there can therefore be no doubt as to t heir
victim status.
Following the notification by the applicants, as the organisers, of a
planned demonstration, the district Governor prohibited a large -scale
gathering on Taksim Square on May 1st, though four other squares of
Istanbul were identified by the authorities as places where commemorative
assemblies could have been held on the same day. Among the reasons given
for limiting the presence on Taksim Square the authorities mentioned
security concerns. In particular, the Government claimed that “it wa s
established by the security forces that various terrorist organisations were
prepared for provocative actions and they would attack … the security
forces”. The ban served, in principle, the interests of national security or
public safety, or the preven tion of disorder or crime. This is a legitimate
ground for limiting the right of assembly, at least as long as these grounds
can be convincingly demonstrated to exist. N either a hypothetical risk of
public disorder, nor the presence of a hostile audience a re legitimate
grounds for prohibiting a peaceful assembly (see Makhmudov v. Russia ,
no. 35082/04, 26 July 2007). Moreover, the choice of venue, though subject
to otherwise acceptable limitations, is part of the right to demonstrate.
The Court, in the present case, considers that it is not called on to rule on
the choice of the venue of the demonstrations, or to determine whether or
not there was a security risk if a demonstration were to be held in Taksim
Square. However, in the absence o f any refutation of the authorities ’ claim
of a security risk, it can be accepted that such a risk must have existed.

JUDGMENT DİSK AND KESK v. TURKEY – SEPARATE OPINION S 13

Once such a risk exists, one cannot in principle deny that preventive
measures intended to hamper access to the secured area may be reason able
and, therefore, necessary, and the national authorities are better placed to
evaluate the appropriateness of the measures. For the application of such
preventive measures see Scozzari and Giunta v. Italy ([GC], nos. 39221/98
and 41963/98, ECHR 2000 -VI II), Christians against Racism and Fascism
(cited above), Rai, Allmond and “Negotiate Now ” v. the United Kingdom
(no. 25522/94 , Commission decision of 6 April 1995), and Schwabe and
M.G. v. Germany (nos. 8080/08 and 8577/08, ECHR 2011 ). In such cases
the i ssue for the Court is the proportionality of the preventive (restrictive)
measures.
In the present case people started to gather around 6 a.m. in front of the
DİSK HQ in the Şişli district of Istanbul, allegedly on the pavement. This
gathering was not a no tified gathering, and it was therefore illegal under
Turkish law. The illegality of a gathering does not, per se , preclude the
finding of a violation under Article 11 of the Convention. The authorities
have to show a certain level of tolerance, irrespectiv e of the legality of a
gathering. The Government argued that there had been several warnings,
and the level of force used was only gradually increased, once it was clear
that the people present were not willing to disperse. Moreover, the
Government argued that the demonstrators had begun to march towards
Taksim Square. Further, the representatives of the trade unions were able to
make a press statement, and they decided to disperse. The applicants did not
respond to the Government ’s observations in the form required by
Rule 34 § 2 of the Rules of Court. The Court did not find those observations
to be refuted. As the security risk at Taksim Square cannot be ruled out, it
was also reasonable to take preventive measures that would prevent
demonstrators from goi ng there.
Are these preventive measures not likely to prejudice the right of
assembly? The applicable standard is the following: “ Even if there is a real
risk of a public demonstration resulting in disorder as a result of
developments outside the control o f those organising it, such a
demonstration does not as such fall outside the scope of Article 11 § 1, but
any restriction placed on such an assembly must be in conformity with the
terms of paragraph 2 of that provision (see Christians against Racism and
Fascism …, and, mutatis mutandis , Ezelin , … § 41).” (see Schwabe and
M.G. , cited above , § 103 ).
In view of the facts as evaluated in paragraphs 33 -34 of the judgment, the
intervention to disperse people was disproportionate and very frightening. It
is true that the authorities made a number of public squares available for
demonstrations on May 1 st, but the Government could not prove that efforts
were made at the Şişli gathering to invite people to demonstrate at the
designated squares, and to help them access those sites when public
transportation was restricted as a precautionary measure. The level of force

14 JUDG MENT DİSK AND KESK v. TURKEY – SEPARATE OPINION S

used in the dispersion was such that it could have had a chilling effect on
the applicants and other participants in the assemblies. It could also h ave
discouraged other persons from participating in lawful May 1 st assemblies
on the grounds of the resulting uncertainty as to the lawfulness of other
demonstrations, in view of the hostile attitude of the authorities that was
demonstrated in front of the DİSK HQ (see mutatis mutandis, Bączkowski
and Others v. Poland , no. 1543/06, § 67 , 3 May 2007 ).
It remains to be seen how the impact of the disproportionate use of force,
in so far as it had a chilling effect on demonstrators at Şişli, and others who
inte nded to follow the call of D İSK and KESK, makes these trade unions
victims of the above violation.
First, the two trade unions are victims directly, as organisers of a
demonstration to commemorate the Taksim massacre. Secondly, and
additionally, they have standing also on behalf of the demonstrators (both
members of D İSK and KESK and others who intended to participate in
response to the call of these trade unions). The participants or would -be
participants, together with the organisers, are a de facto “comm on subject”
of the planned demonstration; this unity follows from the nature of the
“subject” of the right to demonstrate in the specific situation of a non –
spontaneous demonstration, where organisers and the crowd act inseparably.
A demonstration is not, at least in the typical case, an occasional coming
together of randomly participating individuals. Thirdly, the freedom of
assembly of the applicant organisations has been breached directly and
indirectly in view of their trade union status. Trade unions h ave a right to
represent members without a specific mandate in matters related to the
functions of the given union. A trade union must be considered to be
entitled to act in its own name as well as on behalf of its members and
represent their rights. In th e present case, to celebrate Labour Day and
commemorate friends of the trade union and its members who had lost their
lives during t he demonstrations of 1 May 1977 clearly entered into the
general mandate of the two trade unions concerned.

JUDGMENT DİSK AND KESK v. TURKEY – SEPARATE OPINION S 15

JOINT DISSENTING OPINION OF JUDGE S ZIEMELE AND
KARAKAŞ
While we follow the Chamber ’s reasoning on all of the substantive
points, we cannot agree with the Court ’s decision with regard to the issue of
an award in respect of non -pecuniary damage in this case. We note that in
paragraph 44 of the judgment and point 4 of the operative provisions the
Court has decided n ot to allocate any compensation for non -pecuniary
damage, holding that the finding of a violation is sufficient compensation.
We should like to refer back to the extensive discussions that have
already taken place in the Court concerning the problem raised by this
approach, by which the Court from time to time accepts that a judgment
declaring a violation is in itself a form of compensation. We do not believe
that this approach is compatible with the general principles of international
law as regards State responsibility which have been followed in the Court ’s
case -law. We refer to Judge Spielmann ’s dissenting opinion in the case of
Guiso -Gallisay v. Italy (no. 58858/00, 8 December 2005 ) with all the
relevant information notes and sources cited therein, summ ing up those
discussions and the applicable legal principles. In other words, where a
court establishes that there has been a breach of an international obligation
by a State, it must assess how best that breach should be repaired. This is a
different ques tion from that of establishing whether there has been a
violation. Normally, any violation would give rise to some award of
damages. It is only in highly exceptional circumstances that the Court may
decide not to award moral damages if, in its opinion, var ious relevant
factual circumstances preclude such an award. In any event, the Court must
address fully the question of reparation for damage or, failing that,
appropriate compensation, including assessment of non -pecuniary damage.

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