Ekrem Can and Others v. Turkey (Application no. 10613/10)

A selection of key paragraphs can be found below the judgement.

84.  Be that as it may, the Court does not lose sight of the fact that a number of civilians and court officials were confined for approximately one hour inside the offices and hearing rooms as a result of the protest held by the applicants. Those persons were affected by the tear gas that the police administered when dealing with the incident. These elements are sufficient to conclude that the impugned protest negatively impacted the orderly provision of an essential public service (namely judicial services) and disturbed public order for a period of an hour and may have caused fear and discomfort in those who were in the vicinity of the corridor on the third floor of the Sultanahmet Courthouse. That said, in the absence of any violent intention or violent conduct on the part of the applicants, those factors alone do not suffice for the impugned protest to fall outside the scope of Article 11 of the Convention (see Kudrevičius and Others, cited above, § 98). 

85.  In view of the above, and despite the disturbance caused to public order by the applicants’ conduct for a period of one hour, their actions were not such as to warrant the conclusion that they 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. On those grounds, the Court dismisses the Government’s preliminary objection based on Article 17 of the Convention (see paragraph 69 above). 

86.  Accordingly, there has 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 within the premises of the Sultanahmet Courthouse. 

88.  The Court further considers that the interference in question pursued the legitimate aims of protecting public safety and the rights and freedoms of others, and of preventing disorder. 

93.  The Court has already established that the applicants’ conduct, albeit involving a certain degree of disturbance, was not violent and caused no damage (see paragraphs 82 to 84 above). The Court cannot therefore discern, including from the domestic courts’ decisions, any justification for sentencing each of the applicants – on account solely of their behaviour at the courthouse – to one year and eight months’ imprisonment, which is a particularly severe prison sentence. Although sanctions for the applicants’ actions might have been warranted by the demands of public order, such lengthy prison sentences were not proportionate to the legitimate aims of protecting public safety and the rights and freedoms of others, or of preventing disorder. 

94.  In addition, all the applicants were also held in pre-trial detention for a period of at least one year, eight months and fourteen days – again very long periods – on the basis, notably, of acts that fell within the purview of Article 11 of the Convention, notwithstanding the disturbance caused by their protest in the courthouse (see Taranenko, cited above, § 94; also compare the above-cited cases of Knežević, § 88, with further references, and Tuskia and Others, cited above,§ 86). 

95.  Accordingly, the Court concludes that the interference with the applicants’ right to freedom of assembly under Article 11 of the Convention, considered in the light of Article 10, was not “necessary in a democratic society”. 

96.  There has therefore been a violation of Article 11 of the Convention.