by Mr. Rıza Türmen*
1. Taksim Gezi Park protests that have spread all over Turkey since 31st of May resulted in, according to the Turkish Medical Association:
i. 4 deads
ii. 7832 wounded
iii. 11 people lost their sights
iv. 20 people are in intensive care unit
According to “Gündem Çocuk” Association, between 28th of May and 25th of June, 294 children have been detained. Many have been subject to pepper gas and pressurized water. Even infants are not spared from such treatment.
2. At present, a witch hunt is going on in Turkey. The police broke into the houses of demonstrators and hundreds of them were detained. Many doctors who treated voluntarily the wounded, legal attorneys who defended them voluntarily are under detention. The Government has requested the Turkish Medical Association to provide the list of medical doctors who treated the wounded voluntarily. The school head masters are asked to give the names of the students who were absent during the events. The Prime Minister (PM) has stated that the hotels that opened their doors to the demonstrators would be punished.
3. In the Parliament two draft legislations prepared by the Government and related to the Taksim events are in the pipeline. One of them is a legislation which renders “unauthorized medical care” by medical doctors (MD) an offence under criminal law and sentences them one to three years of imprisonment and up to five million US Dollars of fine. Turkish Medical Association has strongly objected to it on the ground that such a legislation would make it impossible for doctors to give medical care during the times of natural disasters and it is duty of MDs to provide medical assistance to those who need it.
The second draft legislation is to clamp down on social media which has played an important role in Taksim events and which has been qualified by the PM as a “menace”. Under the draft legislation, those who write “menacing tweets” will be committing a criminal offence.
4. The Govenment’s intervention to the Gezi Park demonstrations is fraught with serious human rights violations.
The ECtHR in the number of judgements stated that the freedom of assembly must be considered in the light of Art 10 and Art 11 protects an assembly that “may annoy or give offence to persons or governments opposed to the idea sor claims that it is skeeing to promote” (Stankoc v. Bulgaria, 2001).
The form of assembly is not important. The only limitation is that the assembly must be peaceful. The Court said in its the United Macedonia Organization v. Bulgaria (2005) judgement that, “In a democratic society based on the rule of law, political ideas which challange the existing order and whose realization is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of assembly as well as by other lawful means”.
Even incidental disruptions will not render an assembly unpeaceful as long as the object is not to cause disturbances (Christian against Raicism and Fascism v. UK, 1980). When there is a peaceful demonstration the authorities are under the obligation to protect it and not disrupt it.
The Venice Commission in it Report on “Opinion Concerning Freedom of Assembly” dated 25 June 2012, holds the opinion that, “restrictions on public assemblies should not be based upon the content of the message they seek to communicate. It is especially unacceptable if the intereference with the right to freedom of assembly could be justified simply on the basis of the authorities’ own view of the merits of a particular protest”.
The Taksim Gezi protest was a perfectly peaceful assembly until the police set fire to the encampment in the park on 31st of May after which the people took to the streets to express their outrage. The same was repeated on the 15th of June. The police first dispersed the peaceful gathering in Gezi Park by using disproportionate force and then brutally attacked the park. The PM, later on proudly disclosed that it was he who had instructed the police to use force against peaceful assemblies. This is a flagrant violation of Art 11 of the Convention. The interference occured because, as the Venice Commision points out, the PM’s “own view of the merits” of the assembly was different from that of the protestors.
The authorities also argue that they have to intervene because the assemblies took place in public spaces. Such justification is not compatible with Art 11 of the ECHR. The Venice Commission in its report provides that “Location … is one of the key aspects of freedom of assembly. The privilege of the organiser to decide which location fits best for the purpose of the assembly is part of the very essence of freedom of assembly.”
Police exercised disproportionate use of force against peaceful demonstrations. Indiscriminate use of pepper gas, pressurized water mixed with chemicals that cause skin irritations, pepper gas capsules fired to the heads of demonstrators causing head fractures and lost of sight and severe beatings are examples of such disproportionate use of force. The Venice Commission states in its report that, “Where participants do not engage in acts of violence … it is important for the authorities to exercise tolerance as any level of forceful intervention may be disproportionate.”
The CPT considers that pepper spray is a potentially dangerous substance and should not be used in confined spaces. Even when used in open spaces the CPT has serious reservations; if exceptionally it needs to be used, there should be clearly defined safeguards in place. For example persons exposed to pepper spray should be granted immediate access to a medical doctor and offered an antidote.
The unwarranted and indiscriminate use of pepper gas against peaceful demonstrators is clearly a violation of Art 3, since the gas was used in closed spaces such as the CHP headquarter in Ankara or inside houses. It was and still is sprayed to the faces of the demonstrators at a very short distance. In Ali Güneş v. Turkey judgement, the EctHR stated that, “Having regard to the effects the gases cause and potential health risk they entail, (the Court) considers that the unwarranted spraying of the applicant’s face … must have subjected him to intense physical and mental suffering and was such as to arouse in him feelings of fear anguish and inferiority capable of humiliating and debasing him” and concluded that the police officers subjected him to inhuman and degrading treatment.
The Government also has failed in its obligation to conduct an effective investigation into the allegations of inhuman treatment. Instead, the PM praised the police force for its “epic heroic efforts” and rewarded them by a generous award.
There are other violations of Art 3. The fact that on June 15th the police prevented the MDs from treating the wounded and even detaining them is a violation.
There is evidence that women protestors under detention have been subject to degrading treatment. They have been asked to strip and subject to search.
The Council of Europe should invite the Turkish Government to stop violating human rights and observe its obligations under the international human rights instruments.
5. The PM Erdoğan and its Government failed to understand the true nature of Gezi Park protests. The protests are against the increasing authoritarian and majoritarian style of governing of Mr. Erdoğan.
There are two aspects of the Turkish authoritarianism. One is enormous concentration of power in the hands of one man and, consequently, lack of a system of checks and balances. All the institutions are under the control of the Government. The judiciary is not independent. The legislative simply rubber stamps the ruling party’s drafts. Media is tightly controlled as can be seen from its reporting on Gezi events. Universities are silenced.
The second aspect is the interference of the PM and authorities with the private lives of the individuals and increasingly restricting individual rights and freedoms. The PM’s exhortations about the number of children each family should have, against abortion, ban on alchol, imposing his own morals upon society, his intervention even with tv series are such examples.
The PM’s concepts of democracy is based on the understanding that legislative elections every four years are enough to legitimize the policies the government deems appropriate for entire population.However democracy is not limited to elections. It is a value system which includes human rights, pluralism, separation of powers, rule of law, independence of judiciary, minority rights. These are the common values of all members of Council of Europe and which constitute “raison d’etre” of the Council.
Gezi Park protestors are against the “elected authoritarianism”. They demand a pluralistic and participatory democracy. They want to have a saying in the decisions that will have effects on their lives. They do not espouse to big causes. They do not want to change the world, but they want to be recognized as autonomous individuals who can write their own life stories. As such, Taksim protests indicate the vibrant nature of the Turkish democracy.
The Governments’s reaction to the protests are appaling. Instead of trying to construe the reasons for the protests, the PM labelled the protestors as “çapulcu” (looter) and traitors. He also said that he can hardly keep the remaining 50% at home. The minister, Mr. Bağış called them terrorists. The only explanation the Government provided for the protests was that it was an “international plot” which included foreign media, the EU, and interest loby. The response of the Government to the protests was to organize mass meetings in different cities. The PM’s language in these meetings was aggressive, contemptuous and divisive.
It has now become clear that the measures adopted by the authorities during and after the Taksim events such as restricting freedom of assembly and right to protest, freedom of press, using excessive force, detaining large number of protestors, lawyers, doctors, stricter regulation of social media, point to a clash of values with the Council of Europe. It is the duty of the Council of Europe to call the Turkish Government to abide by the rules of democracy and human rights. This is necessary not only to protect democracy and human rights in Turkey, but also to protect the Council’s common values.
*Mr. Rıza Türmen,
CHP İzmir Deputy, Former Judge of Europe Court of Human Rights (ECHR)