In a new judgement, the European Court on Human Rights ruled against against Turkey, and in favour of antimilitarist activists. The case was brought by İzmir Savaş Karşıtları Derneği and Others against Turkey (no. 46257/99), on grounds of violation of Article 11 of the European Convention on Human Rights.
The applicants are an association, İzmir Savaş Karşıtları Derneği (Izmir Association Against War), and Ayşe Tosuner, Ali Serdar Tekin and Osman Murat Ülke, Turkish nationals born in 1950, 1974 and 1970 respectively, who live in Izmir (Turkey).
In January 1994 various members of the applicant association travelled to Germany to attend meetings organised by an association of lawyers and Greenpeace. The president of the applicant association, Mr Murat Ülke, also travelled to Colombia and Brazil in November and December 1994 to attend other meetings.
On 5 June 1996 certain members of the association were sentenced by İzmir Criminal Court under section 43 of Law no. 2908 to three months' imprisonment as they had not sought permission to leave the country from the Ministry of the Interior. That judgment was quashed by the Court of Cassation on the ground that the Criminal Court had failed to commute the prison sentences into fines. The case was remitted to the Criminal Court, which complied with the Court of Cassation's judgment on 14 July 1997.
The applicants complained that their right to freedom of association and to peaceful assembly had been infringed by their criminal convictions for allowing members of the association to travel overseas without requesting prior permission from the authorities. They relied on Article 11 (freedom of assembly and association)
The issue before the Court was whether the interference with the applicants' freedom of association could be considered to have been “necessary in a democratic society”. It reiterated that in a democratic society based on the rule of law, political ideas which challenged the existing order and whose realisation was advocated by peaceful means had to be afforded a proper opportunity of expression through the exercise of the right of assembly as well as by other lawful means. In view of the role played by associations, any measure taken against them affected both freedom of association and, consequently, democracy in the State concerned.
The Court reiterated that the State could not, in the name of protecting “national security” or “public safety”, take just any measure it happened to deem appropriate. It further noted that no member State of the Council of Europe possessed legislation similar to section 43 of the Turkish law on associations, which was repealed in 2004.
Accordingly, the Court found that the permission the applicants had been required to obtain in the case before it could not be regarded as pursuing a legitimate aim, namely the protection of national security or public safety. It therefore held unanimously that there had been a violation of Article 11 and awarded Mr Murat Ülke and Mr Ali Serdar Tekin EUR 1,500 each for pecuniary damage and the applicants EUR 4,000 jointly for costs and expenses. (The judgment is available only in French.)