Freedom of Assembly
Article 11 of the European Convention on Human Rights provides that everyone has the right to freedom of peaceful assembly and the freedom of association with others, including the right to form and join trade unions for the protection of his interest. The freedom upholds and complements freedom of expression.
The state has both negative obligations not to interfere with the right and positive obligations, in some cases, to facilitate the right. The right and positive obligations to uphold it apply even in respect of unpopular views. The courts are especially guarded in view of the vulnerability and possible victimisation of minorities.
No restriction shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedom of others.
The Article does not prevent the imposition of lawful restrictions on the exercise of those rights by members of the armed forces, police or of the administration of the State. The rights apply to public and private meetings in public places or in private.
Prior Notice / Consent
The requirement for prior notice of assemblies to authorities does not necessarily breach the right. It is generally reasonable in terms of public order that authorities have prior notice to arrange policing and be in a position to react to something which might be a breach of public order. The decision of the authorities must be proportionate. It must strike a balance between the rights of those who wish to assemble and the rights and freedoms of others.
In some cases, the requirement for prior notice may be unreasonable, such as where there is a spontaneous demonstration, which is dispersed violently, where there is no illegal conduct. In this case the action by the state may be a disproportionate restriction on the freedom.
A delay and difficulties in the procedure for consent may itself amount to an unreasonable restriction on the right of assembly. It could have the effect of preventing applications and participation and discouraging assemblies. Summary sanctions and penalties for breaching procedures for organising and holding an assembly may themselves constitute interference. In other cases, the refusal of lawful authorisation may be unreasonable in the circumstances.
A conviction for taking part in an assembly which is not illegal or unauthorised or does not obstruct traffic breaches the right to peaceful assembly. Unreasonable action by the authorities in relation to the assembly itself may breach the right. An unreasonable dispersal without good reason or legitimate justification may fall into this category, notwithstanding prior consent.
The right may be limited and interfered with for the legitimate reasons set out in the Article. However, the restrictions must be sufficiently precise so that citizens can understand the consequences that a given action make carry.
Public order offences are notoriously subjective and broad. This is often of necessity, and most have been held compliant. Some others have been held to be non-compliant.
State action may be aimed at orderly freedom of movement for the public, circulation of traffic and the prevention of disorder. The measures must be necessary in a democratic society. They must be proportionate and relate to a definite social need. They must be convincingly established and not be a disguised restriction on the right. Penalties may not be imposed for mere participation and assembly where there is nothing illegal, violent or obscene about it.
The decisions of the authorities must be proportionate. They must strike a balance between the rights of those who wish to assemble and the rights and freedoms of others. Where an assembly is disorderly, involves violence, or is not peaceful, it will be legitimate for authorities to intervene. States must tolerate a certain level of disruption of traffic and the rights of others to facilitate lawful and peaceful gatherings.
Where there is a threat of a counter-demonstration, authorities will be allowed wider discretion in relation to control of the assembly. A mere threat would not be sufficient to ban the event. There must be definite evidence of a risk. States will be allowed a margin of appreciation in assessing the possibility of a breach of law and order.
Charter of Fundamental Rigths
The Charter of Fundamental Rights provides that everyone has a right to freedom for a peaceful assembly and free association at all levels, in particular in political, trade union and civic matters. This implies the right for everyone to form and join trade unions and political parties for the protection and promotion of his interests. Political parties contribute to expressing the political will of citizens.
In a case where a transport company took action to stop a demonstration blocking an important arterial highway, the European Court of Justice held that failure to ban the demonstration was not equivalent to a quantitative restriction on the movement of goods. The public authorities were respecting the right of freedom of assembly, and this was a legitimate interest. This justified the restriction on the obligations imposed by EU law, including the fundamental principle of the free movement of goods.