Article 11 of the Convention
“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with
others, including the right to form and to join trade unions for the protection of his interests.
- No restrictions 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 freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
The right to freedom of peaceful assembly is a fundamental right in a democratic society. The European Court has held that states can have positive obligations to ensure the enjoyment of the right.
In Plattform Artze fur das Leben v Austria, there were demonstrations and counterdemonstrations in relation to the issue of abortion. Questions arose as to what extent the state was obliged to facilitate the right of assembly in circumstances of a counterdemonstration. The court indicated that the guarantee of freedom of peaceful assembly cannot be reduced to a mere duty of the state not to interfere.
Article 11 sometimes requires measures to be taken to regulate matters, even between private persons. The positive duties apply both to the freedom of assembly and freedom of association. In Djavit v Turkey, the court indicated there may be an obligation to ensure the effective enjoyment of the right to freedom of association, even in the sphere of relations between individuals.
Accordingly, it is incumbent upon public authority to guarantee the proper functioning of an association or political party even when they annoy or give offence, to present or propose lawful ideas or claims that they are seeking to promote. The members must be able to hold meetings without having to fear that they will be subject to physical violence by their opponents. Such actions may be liable to deter other associations or political parties from openly expressing their opinions on highly controversial issues affecting the community.
Conditions for Exercise
The assembly must be peaceful. There is no right to commit violence or use force even in circumstances where the expression of the assembly is opposed by others. The state has a legitimate interest in policing a demonstration in order to avoid public disorder and violence.
It is not unlawful for states to require prior authorisation or notice of public assemblies or demonstrations. This is provided that the purpose is to ensure that that is peaceful and orderly. However, prior notice requirements should operate fairly and in accordance with law.
In Vyerentsov v Ukraine Soviet-era laws were still in force many years after independence and did not provide a sufficient legal basis for the protection of Article 11 rights. The requirement for prior notice must not be unduly burdensome.
Even where there is a prior notice requirement, states must not act disproportionately in cases of assembly without prior notice. A refusal of permission can itself be an interference with the right if it is not proportional.
In Rai v UK there was a demonstration relating to Northern Ireland in Trafalgar Square that was permitted in Hyde Park. This was based on a declared desire to avoid the Square being used by persons supporting violence. The Commission indicated that the parties were justified in seeking to avoid public disorder and protect the rights of others.
Elected officials must exercise responsibility in exercising their right of freedom of assembly. In Osmani v Macedonia a politician made an inflammatory speech criticising the decision of the Constitutional Court regarding the flying of flags. Two days later there were violent scenes during an episode where the politician organised armed persons to police against the removal of the flag there were violent scenes.
The politician was prosecuted and convicted of offences. The European Court indicated that the conduct of the applicant could not be condoned. He had denounced the decisions of the Constitutional Court and become actively involved in setting up protection of the Albanian flag in circumstances leading to hatred and intolerance in a tense ethnic situation. It was beyond the bounds of legitimate political expression protected by the Convention.
Going to Assembly
In Yesilgo v Turkey association members were prohibited from travelling to a part of Turkey due to a state of emergency. No reasons were given, and it did not appear that the association’s presence would exacerbate the particular conditions which had led to the state of emergency. The political atmosphere was a relevant consideration.
In Djavit v Cyprus members of an organisation campaigning for a federal Cyprus were not permitted to cross the Green Line to meet members of his association on the Greek side to attend biannual meetings was a breach of the right. It was not regulated by law.
Mocanu and Others v. Romania case concerned in particular the investigation which followed the violent crackdown on anti-government demonstrations in Bucharest in June 1990. During the crackdown, the first applicant’s husband was killed by gunfire and the second applicant was arrested and ill-treated by the police.
The Court held that there had been a violation of Article 2 of the Convention in its procedural aspect (investigation) in respect of the first applicant and a violation of the procedural aspect of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention in respect of the second applicant, finding that the authorities responsible for the investigation had not taken all the measures which could have led to the identification and punishment of those responsible for the violent events and that the applicants had not had the benefit of an effective investigation for the purposes of the Convention.
The Court accepted in particular that, in exceptional circumstances, the psychological consequences of ill treatment inflicted by State agents could undermine victims’ capacity to complain about treatment inflicted on them and could constitute a significant impediment to their right to redress. In the present case, the Court noted that the second applicant, like the majority of the victims, had found the courage to lodge a complaint only several years after the events, when the investigation which had already been opened of the authorities’ own motion seemed to be making progress. It therefore considered that, in the exceptional circumstances of this case, the applicant’s vulnerability and his feeling of powerlessness amounted to a plausible and acceptable explanation for the fact that he had not lodged a complaint until 2001, more than ten years after the events.
Cestaro v. Italy The twenty-seventh G8 summit took place in Genoa in July 2001. A number of NGOs organised an alternative anti-globalisation summit in the city at the same time. The case concerned events which occurred at the end of the G8 summit, in a school made available by the municipal authorities to be used as a night shelter by “authorised” demonstrators. An anti-riot police unit entered the building around midnight to carry out a search. When the police arrived, the applicant, then aged 62 and who was inside the school, was sitting with his back to the wall with his arms raised. He was struck several times, causing multiple fractures. The applicant complained that he was the victim of violence and ill-treatment, which in his submission amounted to torture, when the police raided the school.The Court held that there had been a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention on account of ill-treatment sustained by the applicant and of inadequate criminal legislation concerning the punishment of acts of torture which was not an effective deterrent to prevent the repetition of such acts. Having regard to all the circumstances presented, it found, in particular, that the ill-treatment sustained by the applicant when the police stormed the school amounted to “torture”. The Court also noted that the failure to identify the actual perpetrators of the ill-treatment could partly be explained by the objective difficulty of the public prosecutor’s office in establishing definite identifications but also by a lack of police cooperation.
Süleyman Çelebi and Others v. Turkey 24 May 2016
The applicants were a number of individuals and a trade union who took part in a rally held in Istanbul on 1 May 2008 to celebrate May Day that was dispersed by the police using violence. The individual applicants alleged in particular that the police officers had used disproportionate force in order to disperse the gathering. They said that they had been hospitalised owing to the after-effects of the tear gas they had inhaled and the blows they had received, and claimed that the members of the security forces had gone unpunished.
The Court held that there had been a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention, both in its substantive and procedural aspect, in the case of the third and fifth applicants. It noted in particular that the injuries observed by doctors to these two applicants, who had not engaged in violence, were to be considered attributable to the aggressive police operation to break up the demonstration. As such treatment was not justified simply in order to disperse a demonstration, it constituted inhuman and degrading treatment. The Court also observed that the police officers involved had not been prosecuted. Nor had the persons who had issued the orders been the subject of a judicial investigation. Only a criminal investigation concerning the police officers and also the Governor and Head of the Security Directorate, who had given the orders, would have been able to shed light on the content and scope of the orders received by the police officers.
Lazaridou v. Greece 2018 concerned physical injuries sustained by the applicant in May 2010, on the day of a demonstration organised against the austerity measures imposed by the Greek Government. The applicant, who had not taken part in the demonstration, was in a building where two associations had their headquarters. Injured in the arm by shards of glass, she blamed her injuries on the police officers of a special unit, saying that she had been behind a glass door that had been broken by the police officers when they had entered her building.
The applicant submitted in particular that she had been deliberately injured by police officers, who had subsequently taken no interest in her condition and had prevented her from immediately seeking treatment. She also complained about the investigations into the events in question.
The Court held that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in its procedural or substantive aspect. It noted in particular that at the end of the criminal proceedings the police officers in question had been acquitted by the Greek courts, which had examined the evidence and had taken all the steps available under criminal procedure to clarify the circumstances of the incident. It also observed that there was nothing in the proceedings to suggest that the domestic courts had not presented the requisite independence and impartiality.
The Court further held that there was insufficient evidence in the present case to conclude, beyond reasonable doubt, that the applicant had suffered the alleged treatment at the hands of the police officers in question. It reiterated in particular that allegations of ill-treatment had to be supported by appropriate evidence. There was no sufficient evidence in the applicant’s case. Lastly, she had never been detained or held in police custody or under the control of the police. Her situation had therefore been entirely different from that of an individual finding him or herself at the hands of the police.
Najafli v. Azerbaijan 2012 In October 2005, the applicant, a journalist, was sent to cover an unauthorised demonstration, organised by opposition parties, in Baku. During the dispersal of the demonstration by the police, the applicant and his colleagues were beaten up and received various injuries. He submitted in particular that he had been beaten up by police and that the authorities had failed to carry out an effective investigation, letting those police officers responsible go unpunished.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention as concerned the treatment of the applicant by the police, given in particular his injuries, which proved that he had experienced serious physical and mental suffering. It noted, inter alia, that the applicant had not used violence against the police or posed a threat to them. Nor had the authorities given any other reasons justifying the use of force, which had therefore been unnecessary, excessive and unacceptable.
The Court also held that there had been a violation of Article 3 of the Convention concerning the investigation into the applicant’s claim of ill- treatment, finding that it had been ineffective and had lacked independence. It noted in particular that no relevant procedural steps had been taken until the applicant had been questioned, more than three months after the incident, and that the identification of those responsible for the applicant’s beating had been delegated to the same authority whose agents had allegedly committed the offence. Even if another police department had been in charge of this major part of the investigation, the agents had been colleagues, employed by the same public authority.
Counter Demonstration & Break-Up
A decision to break up an assembly must be justified. Breaking up for failure to get prior permission will is likely to be a breach. The enforcement approach of the authorities should not be heavy-handed. There should be tolerance provided that demonstrators do engage in acts of violence. A heavy-handed approach to policing that leads to violence will not preclude the actions from being held to breach Article 11.
In Faber v Hungary a right-wing party assembled near an antifascist demonstration by way of counterdemonstration. The applicant was arrested for holding a flag close to the right-wing demonstration, of an organisation complicit in the killing of the Jews. The court held that the display of the flag might have offended some in the antifascist demonstration, but it could not be seen as inciting public disorder. There was insufficient justification for interference with the right guaranteed by Article 11.
in Cisses v France, a group of over 300 legal immigrants principally from Africa occupied a church in Paris to protest about their experience of the immigration process. Subsequently, protesters were removed in a heavy-handed manner. The court confirmed the right to peaceful assembly, was critical of the heavy-handed approach but found it was legitimate to restrict the protest after two months of occupation.
Ollinger v Austria the applicant sought to hold a commemoration of Jews killed in the Second World War in the cemetery and All Saints Day at a time of a meeting of an organisation commemorating the death of SS soldiers killed in World War II. The court concluded that the banning of the counterdemonstration was excessive as it would be possible to police both events.
A state is not obliged to go so far as to secure rights of demonstration in publicly owned private places such as a shopping mall. The applicant could convey the message in the public roadway outside.
In Christian Democratic People’s Party v Moldova parents protested against proposals to make Russian compulsory in primary schools. The authorities changed the proposed venue without reason. The demonstrations proceeded at the original venue for several days. A political party was sanctioned for a month. The court indicated.
In Galstyan v Armenia, a person was sentenced to 3 days of detention for obstructing traffic, making noise and behaving in an antisocial way at a rally protesting about the conduct of an election. The European Court held that it was substantially a sanction for attending the demonstration which was lawful and had been authorised. There is a thin line between public order offences and legitimate adjustment protest and the behaviour the subject of sanction fell on the side e of legitimate protest.
In Ezelin v France the court indicated that the protections did not extend to sanctions for violence and disorder. However, sanctions imposed due to the demonstration in itself must be proportionate. A French lawyer was sanctioned by reprimand for having taken part in a demonstration against the use of legislation in Guadeloupe and failing to disapprove insults to the judiciary. The sanction was found to be disproportionate even though the reprimand was minimal in its effect.]
In Gun v Turkey clashes occurred with police after the peaceful breakup of a protest against the detention of a leader of an organisation described as terrorist in Turkey. The applicant had organised the protest which had been tolerated by the police and there was no intention to use violence. The 18-month prison sentence for the organisers was a breach of Article 11.
in view of the central role played by political parties in the proper functioning of democracy, the exceptions in article 11 where political parties are concerned, are to be construed strictly; only convincing and compelling reasons can justify restrictions the party. States have a limited margin of appreciation only. The demonstrations were peaceful and only very serious breaches endangering fundamental democratic principles could justify a ban.
Police Action I
Eğitim ve Bilim Emekçileri Sendikası and Others v. Turkey 2016 In November 2005 the Eğitim-Sen union called on its members to stage a demonstration in the centre of Ankara to claim a right to free and good-quality education. The case concerned in particular the allegations of six of its members regarding ill-treatment by the security forces. According to them, the police subjected them to high-pressure water and teargas and drove at them with an armoured vehicle. The applicants also complained that the authorities had not opened a criminal investigation.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention in respect of the six applicants who were union members, noting in particular that the use of force that they had complained of had resulted in injuries which had unquestionably caused them suffering of such a nature that it constituted inhuman and degrading treatment. Moreover, even assuming that the demonstrators’ conduct could have justified the use of force, the Court took the view that it had not been established that the dispersion of the rally in question could have justified the severity of the blows inflicted to the body, head or face of the participants concerned.
Thus the explanations of the Turkish government did not persuade the Court that the force used by the security forces had constituted an appropriate response to the situation having regard to the conduct adopted by the demonstrators during the incident in question. The Court also found a violation of Article 3 of the Convention under its procedural head, taking the view in particular that neither the complaints to the Prosecutor-General at the Court of Cassation, nor the complaint filed with the Public Prosecutor, had led to an effective investigation.
Kılıcı v. Turkey 2018 In March 2009 about 200 members of various trade unions gathered in Istanbul and moved towards a district where the 5th World Water Forum was being held in order to express, through a statement to the press, their disagreement with the commercialisation and privatisation of water. The applicant, a member of one of the trade unions, was wounded following the firing of rubber bullets by police when dispersing the demonstrators. He complained in particular of a disproportionate and unjustified use of force by the police officers and of the lack of an effective investigation.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that it had not been established that the use of force against the applicant had been appropriate to the situation or proportionate to the aim pursued, namely to control the dispersion of a demonstration, and that the investigative acts had not been thorough or effective. With regard in particular to the rubber bullets, the Court took the view that the scant legislative provisions which set guidelines for the police in the use of force did not suffice by themselves to render the firing of rubber bullets a police action that was lawful and appropriate in the absence of specific rules governing this type of weapon. In the Court’s view, such a situation did not afford the level of protection from bodily harm that was required in contemporary democratic societies in Europe.
Zakharov and Varzhabetyan v. Russia 2020 concerned allegations of police brutality against participants of a political rally in May 2012 at Bolotnaya Square. Both applicants, who had participated in the rally, submitted that they had been ill-treated during its dispersal and complained that the ensuing investigation into their complaints had been ineffective. They further argued that their participation in the rally had been peaceful and that the use of force against them had therefore been unlawful and unjustified.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention under its substantive and procedural heads. It noted, in particular, that it had established beyond reasonable doubt that on 6 May 2012 the police had used force against both applicants during the dispersal of the assembly at Bolotnaya Square, and that they had sustained injuries as a result. At no stage, in addition, had the applicants’ peaceful conduct during the assembly been called into question. The use of force against them had therefore not been strictly necessary by their own conduct, and thus had diminished their dignity. Nor had it been indispensable in the context of quelling mass disorders.
The Court further found that the Russian authorities had failed to carry out an effective investigation capable of establishing whether the use of force by the police had been indispensable and proportionate. In the present case, the Court also held that there had been a violation of Article 11 (freedom of assembly) of the Convention. In this regard, it noted in particular that no explanation had been submitted as to why force had been applied in respect of the applicants, who had not been arrested and had not engaged in any acts of violence. In light of its finding that the force used in respect of the applicants had been unnecessary and excessive, the Court also found that the impugned interference had not been necessary in a democratic society. Moreover, it could have had a chilling effect and discouraged the applicants and others from taking part in similar public gatherings.
Police Action II
Shmorgunov and Others v. Ukraine, Lutsenko and Verbytskyy v. Ukraine, Kadura and Smaliy v. Ukraine, Dubovtsev and Others v. Ukraine and Vorontsov and Others v. Ukrainec 2021
These cases concerned events around the Maidan protests in Kyiv and other cities in Ukraine, between November 2013 and February 2014, including dispersal of the protestors, their detention, the kidnapping of activists and their ill-treatment, and the related proceedings. All of the applicants had been present at or had played a role in the Maidan protests. They alleged, among other things, police brutality, a denial of their right to protest, unjustified detention, and even in one case death.
The Court found, in particular, a violation of Article 2 (right to life) and multiple violations of Article 3 (prohibition of inhuman or degrading treatment), of Article 5 §§ 1 and 3 (right to liberty and security) and of Article 11 (freedom of assembly) of the Convention.
It noted, in particular, that the authorities had used ill-treatment deliberately, and that the State had been responsible for the murder of one protester. It also observed that many of the detention orders had been arbitrary. It further considered that the authorities had deliberately tried to disrupt initially peaceful protests, using excessive violence and unlawful detention to achieve that. Overall, the Court found that the abuses found appeared to have been a strategy on the part of the authorities. The investigations into the events had also in many instances been ineffective.
Lopez Martinez v. Spain 2021 concerned the investigation carried out by the Spanish authorities following the forcible evacuation by the police of several individuals, including the applicant, who were in a cafeteria on the outskirts of the Congress headquarters in Madrid and who had taken part in a demonstration under the slogan “Surround the Congress”.
The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. In the light of the material in its possession, it found that, in the particular circumstances of the case, the investigation conducted by the domestic courts had not been sufficiently thorough and effective to meet the requirements of the procedural aspect of Article 3.
Mikeladze and Others v. Georgia 2021 The applicants, four Georgian nationals, had been arrested at a gathering by the local Muslim community against the conversion of an ancient mosque into a library. They were released the next day. The police alleged that the applicants had resisted their lawful orders, and denied making any derogatory comments, while the applicants brought complaints of ill-treatment against the police officers. The case principally concerned the applicants’ complaints that during their arrest and detention the police had physically and verbally assaulted them, using discriminatory language, and that the criminal investigation into their complaints had been ineffective.
The Court held that there had been a violation of the procedural aspect of Article 3 (prohibition of inhuman or degrading treatment) taken alone and in conjunction with Article 14 (prohibition of discrimination) of the Convention in respect of all applicants, and a violation of the substantive aspect of Article 3 in respect of the first applicant. It held, however, that there had been no violation, in respect of the first applicant, of Article 14 taken in conjunction with the substantive aspect of Article 3, and no violation, in respect of the remaining three applicants, of the substantive aspect of Article 3 either taken alone or in conjunction with Article 14. The Court found, in particular, that the Georgian Government had not satisfactorily explained the source of the first applicant’s injuries and, therefore, had not shown that the use of force against the first applicant had been lawful and strictly necessary and that his injuries had been caused otherwise than by ill-treatment by the police. As regards the remaining applicants and their allegations of physical ill-treatment, it observed, in particular, that no medical evidence demonstrating presence of injuries had been submitted.