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  • 3. Protests: freedom of expression or freedom of peaceful assembly?

    Freedom of peaceful assembly is sometimes difficult to separate from freedom of expression. Authors of communications to the Human Rights Committee that relate to protests often invoke both freedom of expression and of assembly, and the Human Rights Committee is willing to apply both rights.[1]

    The IACHR has stated that demonstrations are “a form of expression involving the exercise of related rights such as the right of citizens to assemble and demonstrate and the right to the free flow of opinions and information.”[2]

    The ECtHR also acknowledges that there is no clear dividing line between the two rights.[3] It considers the guarantee of freedom of peaceful assembly a lex specialis, which must be interpreted in light of freedom of expression, which is the lex generalis:

    The Court notes that … Article 10 of the Convention is to be regarded as a lex generalis in relation to Article 11 of the Convention, a lex specialis … On the other hand, notwithstanding its autonomous role and particular sphere of application, Article 11 of the Convention must … also be considered in the light of Article 10 of the Convention. The protection of personal opinions, secured by Article 10 of the Convention, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 of the Convention.[4]

    In practice, the ECtHR has tended to analyze certain forms of protest as exercises of freedom of expression rather than freedom of peaceful assembly. These include one-person protests,[5] the establishment of protest camps,[6] shouting slogans during a ceremony,[7] hunger strikes,[8] symbolic acts of protest (such as hanging out clothing representing the “dirty laundry of the nation”,[9] pouring paint on a sculpture[10] or burning flags and photos[11] ), displaying signs or political symbols,[12] occupations of public buildings[13] and direct actions intended to block activities that demonstrators disapprove of.[14]

    1. See, for example, Kivenmaa v. Finland, Human Rights Committee, Views of 9 June 1994, UN Doc. CCPR/C/50/D/412/1990 and Galina Youbko v. Belarus, Human Rights Committee, Views of 24 April 2014, UN Doc. CCPR/C/110/D/1903/2009.
    2. IACHR, Report on the Criminalization of the Work of Human Rights Defenders, OEA/Ser.L/V/II, Doc.49/15, 31 December 2015, para.119.
    3. Women on Waves and Others v. Portugal, ECtHR, Judgment of 3 February 2009, para. 28.
    4. Yarouslav Belousov v. Russia, ECtHR, Judgment of 4 October 2016, paras. 166-167 (references omitted); see also Ezelin v. France, ECtHR, Judgment of 26 April 1991, paras. 35-37.
    5. See, for example, Novikova and Others v. Russia, ECtHR, Judgment of 26 April 2016.
    6. See G and E v. Norway, EComHR, Decision of 3 October 1983 and Frumkin v. Russia, ECtHR, Judgment of 5 January 2016, para. 107.
    7. Açık and Others v. Turkey, ECtHR, Judgment of 13 January 2009, para. 36.
    8. Atilla v. Turkey, ECtHR, Decision of 11 May 2010.
    9. Tatár and Fáber v. Hungary, ECtHR, Judgment of 12 June 2012, para. 29.
    10. Murat Vural v. Turkey, ECtHR, Judgment of 21 October 2014, paras. 40-56.
    11. Christian Democratic People’s Party v. Moldova (no. 2), ECtHR, Judgment of 2 February 2010, para. 27
    12. Vajnai v. Hungary, ECtHR, Judgment of 8 July 2008, paras. 27-29; Fratanoló v. Hungary, ECtHR, Judgment of 3 November 2011, para. 13; Fáber v. Hungary, ECtHR, Judgment of 24 July 2012, para. 29.
    13. See Taranenko v. Russia, ECtHR, Judgment of 15 May 2014, paras. 68-69.
    14. See, for example, Steel and Others v. the United Kingdom, ECtHR, Judgment of 23 September 1998, para. 92; Hashman and Harrup v. the United Kingdom, ECtHR, Grand Chamber Judgment of 25 November 1999, para. 28; Drieman and Others v. Norway, ECtHR, Decision of 4 May 2000.