Güler and Öngel v Turkey: Article 3 of the European Convention on Human Rights and Strasbourg's Discourse on the Justified Use of Force
| DOI | http://doi.org/10.1111/1468-2230.12016 |
| Published date | 01 March 2013 |
| Date | 01 March 2013 |
| Author | Natasa Mavronicola |
CASES
Güler and Öngel vTurkey: Article 3 of the European
Convention on Human Rights and Strasbourg’s Discourse
on the Justified Use of Force
Natasa Mavronicola*
This article discusses the discourse on the justified use of force in the Strasbourg Court’s analysis
of Article 3. With particular focus on the judgment in Güler and Öngel vTurkey, a case concerning
the use of force by State agents against demonstrators, it addresses the question of the implications
of such discourse, found in this and other cases, on the absolute nature of Article 3. It offers a
perspective which suggests that the discourse on the justified use of force can be reconciled with
Article 3’s absolute nature.
INTRODUCTION
The case of Güler and Öngel vTurkey1(Güler) has gone largely unobserved by
commentators. Yet not only does it establish important duties on States to
regulate the policing of protests and demonstrations, it also raises interesting and
significant questions regarding the relationship between the definition of the
right contained in Article 3 of the European Convention on Human Rights
(ECHR) and the right’s absolute nature.
It is generally recognised that the absolute nature of Article 3 ECHR lies in
three key elements: it admits of no qualifications or exceptions; it cannot be
subject to derogation under Article 15 ECHR; and it applies to everyone no
matter what.2Concluding its findings by establishing that the force used by
police against protesters during a demonstration in Turkey was ‘excessive’3and
as a result not ‘justified’4and thus a violation of Article 3, the Second Section of
the European Court of Human Rights (ECtHR) brings a number of questions
surrounding Article 3’s alleged absoluteness to the surface.
Is there room for considerations of justifiability and of proportionality or
excess within Article 3? How do such considerations, which tend to feature in
the application of qualified and derogable rights, challenge the absolute nature of
Article 3? Is there any way to reconcile the two? This article outlines the facts
and key aspects of the reasoning in the case before proceeding to highlight the
*PhD Candidate, Downing College, Cambridge. The author would like to thank David Feldman and
Stephanie Palmer for their helpful comments on the subject matter of this comment, and the
anonymous referee for constructive suggestions on an earlier draft.
1Güler and Öngel vTurkey App Nos 29612/05 and 30668/05, Judgment of 4 October 2011.
2 See Ireland vUK (1979–80) 2 EHRR 25 at [163].
3Güler at [28].
4ibid at [29].
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© 2013 The Author. The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(2) MLR 370–400
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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