Oya Ataman group v Turkey (Application Nr 74552/01)
Briefed on 25 February 2019
Rule 9.2. of IHOP on the case and government answer (January/ February 2019)
These cases concern violations of the applicants’ right to freedom of peaceful assembly and/or their ill-treatment or the death of their relatives when excessive force was used to disperse peaceful demonstrations. Certain cases also concern failure to carry out an effective investigation into the applicants’ allegations of ill-treatment or lack of an effective remedy in this respect (violations of Articles 2, 3, 11 and 13 of the Convention). An update on the group was delivered by Basak Cali, EIN Chair, Hertie School of Governance, Berlin; Center for Global Public Law, Koç University, Istanbul, on behalf of the Human Rights Joint Platform (IHOP). IHOP submitted a Rule 9.2 communication on the case on 4 February 2019.
First of all, she underlined that, since the last review of the state of implementation of the cases, Law N0 2911 had not been aligned with the Court’s jurisprudence. On the contrary, further restrictions on freedom of assembly were introduced through new legislative amendments, in particular to the Provincial Administration Law (No 5442).
Beyond these legislative developments, the practice shows the bans of assemblies of selected groups, the retaliatory use of tear gas, as well as civil and criminal law against peaceful protesters. Ms Cali gave examples related to the period after the end of the state of emergency in the country (18/7/2018): the Saturday mothers, continuous ban on gay pride and LGTBI events, despite existence of lawful requests to hold them, the case of Yüksel Resistance (see for further details the full text of the IHOP Rule 9.2 submission available below).
As far as the judicial practice is concerned, Ms Cali also pointed out that none of the judicial organs in Turkey was able to amend ordinary law through individual cases. “The root of the problem clearly lies in the lack of adequate legal framework, and arbitrary nature of the existing legal framework”, she said.
In conclusion, Ms Cali therefore called the Committee of Ministers to:
· take note of the lack of progress in full alignment of Law 2911 with Convention standards in the past twelve years.
· take note of the amendments to law 5442 and its use in supplementing the existing non compliant domestic legal framework, including the use of misdemeanour laws to punish peaceful assembly.
· request disaggregated statistical data from the Government to establish whether peaceful assemblies and gatherings are protected under all circumstances and without selective and arbitrary use of laws for assemblies and gatherings unfavourable to the executive authorities.