9.1 Do organizers and participants have the right to choose the location of their assembly?
The choice of the venue or location of an assembly by the organizers is an integral part of the right to freedom of peaceful assembly. In many instances the location where an assembly takes part is an important part of its message; a protest demanding accountability for a gas explosion, for example, may be held at the site and exact time of the explosion. Likewise, public areas around iconic buildings are a logical place for to convey a message with regard to institutions housed in these buildings.
Since freedom of assembly covers both static and moving assemblies (see Assembly Section 1), the chosen venue may either be a single place or a series of locations along a route.
The organizers’ preferred venue will not always be a convenient one from the point of view of the authorities or the public. The general principle that tolerance (see Assembly Section 6) should be displayed towards the disruption inevitably caused by assemblies means that the choice of venue must in principle be respected. According to the ECtHR, it is the duty of the authorities to:
Stankov and the United Macedonian Organisation Ilinden v. Bulgaria
The applicants in Stankov and the United Macedonian Organisation Ilinden v. Bulgaria were involved in advocacy on behalf of the Macedonian minority in Bulgaria. They wished to organize commemorative events at the graves of historical personalities whom they regarded as Macedonian martyrs. The same figures were however also celebrated as Bulgarian national heroes. Fearing disturbances, the authorities had adopted a practice of not allowing the applicants’ events to take place at the same time and place as the official celebrations. The ECtHR rejected the Bulgarian Government’s argument that the applicants should have chosen other sites or dates for their meetings:
The ECtHR made a comparable finding in Öllinger v. Austria. The applicant, a member of the Austrian Parliament, had informed the police of his intention to hold a silent, respectful meeting of about six persons at the Salzburg municipal cemetery, to commemorate the Salzburg Jews killed by the SS during the Second World War. The meeting would take place on All Saints’ Day, a religious holiday on which the population traditionally visits cemeteries in order to commemorate the dead. It would coincide with a controversial annual commemoration of SS soldiers killed in the war, held by an association of former SS members. The police prohibited the meeting, arguing that it could lead to disturbances that would harm the religious feelings of members of the public visiting the cemetery.
The ECtHR considered that the prohibition was disproportionate and the authorities should have instead deployed police to ensure both assemblies could proceed without incident:
First and foremost, the assembly was in no way directed against the cemetery-goers’ beliefs or the manifestation of them. Moreover, the applicant expected only a small number of participants. They envisaged peaceful and silent means of expressing their opinion, namely the carrying of commemorative messages, and had explicitly ruled out the use of chanting or banners. Thus, the intended assembly in itself could not have hurt the feelings of cemetery-goers. … In these circumstances, the Court is not convinced by the Government’s argument that allowing both meetings while taking preventive measures, such as ensuring police presence in order to keep the two assemblies apart, was not a viable alternative which would have preserved the applicant’s right to freedom of assembly while at the same time offering a sufficient degree of protection as regards the rights of the cemetery’s visitors.Öllinger v. Austria, ECtHR, Judgment of 29 June 2006, paras. 47-48.Öllinger v. Austria, ECtHR, Judgment of 29 June 2006, paras. 47-48.
9.2 What conditions must authorities meet to refuse the use of the chosen location?
Any denial or alteration must conform to the three-prong test
Like freedom of peaceful assembly itself, the right to choose the venue is not absolute. But any limitations imposed should meet the three-prong test for legitimate restrictions on freedom of assembly under international law (see Assembly Section 4). The Human Rights Committee has stated in a number of cases:
Similarly, the ECtHR held in Lashmankin and Others v. Russia:
The right to freedom of assembly includes the right to choose the time, place and manner of conduct of the assembly, within the limits established in paragraph 2 of Article 11 … Accordingly, in cases where the time and place of the assembly are crucial to the participants, an order to change the time or the place may constitute an interference with their freedom of assembly.
The case of Chebotareva v. Russian Federation was lodged by a Russian citizen who had twice tried to organize a small picket commemorating a murdered journalist. On the first occasion, the local authorities informed her they were themselves planning an event in the same place at the same time, and instead proposed another location. According to Ms. Chebotareva, the proposed location was unsuitable as it was outside the city center, and the conflicting event supposedly planned by the authorities never took place. On the second occasion, the authorities denied permission to use the chosen location, claiming it was not safe due to heavy vehicle and pedestrian traffic. The Committee considered that the reasons provided by the authorities were not adequate and there had therefore been a violation of Article 21 of the ICCPR:
In Sáska v. Hungary, the applicant had wished to hold a demonstration on the vast square outside of the Hungarian Parliament. The police asked him to limit the gathering to a secluded part of the square, rather than its entirety. Sáska refused, after which the police banned the demonstration. The ECtHR was unconvinced by the Hungarian Government’s argument that the square needed to be kept clear to ensure MPs could go about their work unhindered. Accordingly, the ban was not justified:
The Court notes the applicant’s unrefuted assertion that another demonstration planned on exactly the same location for 15 October 2008 had not been forbidden by the authorities. For the Court, this is a remarkable element, since on that date … five parliamentary commissions were in session …
In Primov and Others v. Russia, local authorities had banned a demonstration on various grounds, including that the organizers were expecting 5,000 participants and the park where they wanted to gather had a capacity of only 500. The ECtHR accepted that a risk of overcrowding is a legitimate reason to restrict the use of a particular place for an assembly. However, simply banning the event is a disproportionate response:
[E]ven though a park is, a priori, a “public space” suitable for mass gatherings, its size is a relevant consideration, since overcrowding during a public event is fraught with danger. It is not uncommon for State authorities in various countries to impose restrictions on the location, date, time, form or manner of conduct of a planned public gathering … The Court is therefore prepared to accept that such restrictions, in principle, pursue a legitimate aim. … That being said, the Court does not consider that the size of the park was sufficient reason for a total ban on the demonstration. … The Court considers that in the present case it was the authorities’ duty to reflect on the possible alternative solutions and propose another venue to the organisers.Primov and Others v. Russia, ECtHR, Judgment of 12 June 2014, paras. 130-131.Primov and Others v. Russia, ECtHR, Judgment of 12 June 2014, paras. 130-131.
Despite being banned, the protest went ahead anyway. The demonstrators aimed to reach the premises of the district administration; the authorities blocked their way and then proposed an alternative venue in the village, namely the municipal garage. In the opinion of the ECtHR, a proposal for a venue change must be made in a timely manner:
Any restriction on the place of an assembly should be promptly appealable
If the authorities place any restriction on the location of an assembly, the organizer has the right to a rapid appeals procedure (see Assembly Section 11.6).
9.3 Using streets and roads for assemblies
Streets can in principle be used for protests, even when it causes traffic disruption
The general principle that the authorities should display tolerance towards the disruption caused by an assembly (see Assembly Section 6) is of particular relevance when the assembly takes place on a road or other public thoroughfare.
If the authorities fail in their duty to try to manage traffic proactively during an assembly, the resulting disruption may not easily justify an interference with the assembly.
Criteria for restrictions on assemblies that seriously impact traffic
If the disruption to traffic threatened or caused by an assembly is particularly severe and cannot be avoided by taking management measures (see Assembly Section 9.3), restrictions may in some cases be justified, provided they comply with the three-prong test (see Assembly Section 4), including the proportionality requirement (see Assembly Section 4.4).
The case-law of the ECtHR and other sources suggest the following factors are relevant when deciding whether a restriction in the interest of freedom of movement is justified: (1) the actual impact of the assembly; (2) its duration; (3) whether the authorities have prior notice of the assembly; (4) whether the disruption is intentional and serious (for example, because the assembly takes the form of a blockade of a motorway).
The applicant in Körtvélyessy v. Hungary had notified the police of his intention to hold a demonstration of no more than 200 persons outside the Budapest penitentiary, which is located on a dead-end street. The Budapest Police Department prohibited the protest because it feared access to shops, a waste disposal site and the suppliers’ entrance of the prison would be impeded. The ECtHR felt that too much weight had been given to traffic considerations, which moreover were not convincing:
The Court observes that … the basis for upholding the ban on the assembly related exclusively to traffic issues … In this connection, the Court reiterates that a demonstration in a public place may cause a certain level of disruption to ordinary life …
[T]he Court is not convinced by the Government’s explanation to the effect that Venyige Street, a road of five or eight metres in width, with a broad service lane adjacent, could not have helped to accommodate the demonstration without serious traffic disruption. Indeed, their arguments appear not to take into account that the street is a dead end; and the through traffic is thus of limited importance …
Third, the ECtHR recognizes that prior notice (see Assembly Section 11.2) of an assembly makes it easier for the authorities to meet their obligation to manage traffic (see Assembly Section 9.3). In Oya Ataman v Turkey, the Court considered the very rapid termination of the assembly disproportionate, but accepted that
Eugen Schmidberger, Internationale Transporte und Planzüge v. Austria
The case of Eugen Schmidberger, Internationale Transporte und Planzüge v. Austria before the ECJ concerned a blockade of the Brenner motorway, a major trunk road between Germany and Italy, which lasted almost 30 hours. The blockade was organized by an environmental organization that aimed to draw attention to the health and environmental costs of the increased transit of heavy goods vehicles on the motorway. It had given the Austrian authorities a month’s notice of its intentions. Schmidberger, a German transport company that had incurred losses as a result of the roadblock, sued the Austrian government. It considered that by failing to ban the demonstration and keep the motorway open, Austria had violated the right to free movement of goods guaranteed by European Community law. The ECJ found, however, that the Austrian authorities had struck a reasonable balance between the interests at stake:
[T]he competent national authorities were entitled to consider that an outright ban on the demonstration would have constituted unacceptable interference with the fundamental rights of the demonstrators to gather and express peacefully their opinion in public.
The imposition of stricter conditions concerning both the site – for example by the side of the Brenner motorway – and the duration – limited to a few hours only – of the demonstration in question could have been perceived as an excessive restriction, depriving the action of a substantial part of its scope. Whilst the competent national authorities must endeavour to limit as far as possible the inevitable effects upon free movement of a demonstration on the public highway, they must balance that interest with that of the demonstrators, who seek to draw the aims of their action to the attention of the public.
The ECtHR has made it clear that what matters is whether the authorities have actual prior knowledge of the assembly, such that they can take traffic management measures, and not whether the organizers of the assembly have complied with any formal advance notification requirement. In Balçik and Others v. Turkey, the police had received intelligence reports that demonstrators would gather in central Istanbul and block a tram line. The Court criticized the “impatience” of the authorities in ending the protest within 30 minutes to restore public order, pointing out that:
Fourth, the ECtHR seems to require less tolerance from the authorities for intentional and serious obstruction of traffic than for assemblies on public roads where disruption to traffic is a side-effect, or smaller blockades.
The applicants in Kudrevičius and Others v. Lithuania were amongst a group of farmers who were struggling under low milk, grain and meat prices. They were given permission to demonstrate in a number of places. After negotiations with the Government stagnated, the applicants, along with other farmers, moved tractors onto the Lithuania’s three major highways. They did not give prior notice of this move, and ignored police orders to leave. The blockade caused significant disruption over a period of two days. The applicants were subsequently sentenced by domestic courts to 60 days’ imprisonment for “rioting”, suspended for one year. They were also ordered not to leave their homes for more than seven days without the authorities’ prior agreement.
The ECtHR stated, with regard to the applicable level of protection:
The case concerned the blockading of Lithuania’s three main motorways for about 48 hours, without prior notice to the authorities. Previous ECtHR judgments suggest that smaller-scale roadblocks do not justify a reduced level of tolerance from the authorities.
In Lashmankin and Others v. Russia, the applicants complained about a law which prohibited holding public events “in the immediate vicinity” of various types of buildings, such as courthouses, detention facilities, the residences of the President, dangerous production facilities, railway lines and pipelines. The ECtHR held that:
[A] general ban on demonstrations can only be justified if there is a real danger of their resulting in disorder which cannot be prevented by other less stringent measures. In this connection, the authority must take into account the effect of a ban on demonstrations which do not by themselves constitute a danger to public order. Only if the disadvantage of such demonstrations being caught by the ban is clearly outweighed by the security considerations justifying the issue of the ban, and if there is no possibility of avoiding such undesirable side effects of the ban by a narrow circumscription of its scope in terms of territorial application and duration, can the ban be regarded as being necessary within the meaning of Article 11 § 2 of the Convention.Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 434.Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 434.
The applicant in Taranenko v. Russia had been arrested together with a group of about 40 people who had occupied the reception area of the President’s administration building in Moscow, waved placards and distributed leaflets calling for the President’s resignation. She claimed she was not a member of the National Bolsheviks Party, who had organized the protest, but attended to collect information for her thesis in sociology. After spending almost a year in pre-trial detention, Ms. Taranenko was convicted of participation in mass disorder and sentenced to three years’ imprisonment, suspended on probation. The trial court considered it irrelevant whether she had joined the action for research or not, as she had directly participated in a violation of the admission procedure to the building, during which the demonstrators had pushed aside a guard and destroyed furniture (which they later paid compensation for). The ECtHR noted that:
[T]he applicant and the other participants in the protest action wished to draw the attention of their fellow citizens and public officials to their disapproval of the President’s policies and their demand for his resignation. This was a topic of public interest … That being said, the Court reiterates that, notwithstanding the acknowledged importance of freedom of expression, Article 10 does not bestow any freedom of forum for the exercise of that right. In particular, that provision does not require the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property, such as, for instance, government offices and ministries.Taranenko v. Russia, ECtHR, Judgment of 15 May 2014, paras. 77-78.Taranenko v. Russia, ECtHR, Judgment of 15 May 2014, paras. 77-78.
The Court then went on to assess the proportionality of the sanction (see Assembly Section 4.4) imposed, comparing it to sanctions in other cases that had come before it. It concluded that the penalty was clearly disproportionate:
[T]he protesters’ conduct, although involving a certain degree of disturbance and causing some damage, did not amount to violence … although a sanction for the applicant’s actions might have been warranted by the demands of public order, the lengthy period of detention pending trial and the long suspended prison sentence imposed on her were not proportionate to the legitimate aim pursued. The Court considers that the unusually severe sanction imposed in the present case must have had a chilling effect on the applicant and other persons taking part in protest action.Taranenko v. Russia, ECtHR, Judgment of 15 May 2014, paras. 93-95.Taranenko v. Russia, ECtHR, Judgment of 15 May 2014, paras. 93-95.
The case of Appleby and others v. United Kingdom was brought by three individuals and an environmental group, who had wished to collect signatures for a petition at the entrance to “The Galleries”, a shopping mall built by a public development corporation as the new town center and subsequently sold to a private company. The manager of the mall refused permission to set up a stall in the mall or its car parks, referring to the owner’s policy of neutrality. The applicants instead set up stalls on public footpaths and in the old town center.
That provision [Article 10], notwithstanding the acknowledged importance of freedom of expression, does not bestow any freedom of forum for the exercise of that right. While it is true that demographic, social, economic and technological developments are changing the ways in which people move around and come into contact with each other, the Court is not persuaded that this requires the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property (government offices and ministries, for instance). Where … the bar on access to property has the effect of preventing any effective exercise of freedom of expression or it can be said that the essence of the right has been destroyed, the Court would not exclude that a positive obligation could arise for the State to protect the enjoyment of Convention rights by regulating property rights. The corporate town, where the entire municipality was controlled by a private body, might be an example.Appleby and others v. United Kingdom, ECtHR, Judgment of 6 May 2003, para. 47.Appleby and others v. United Kingdom, ECtHR, Judgment of 6 May 2003, para. 47.
In the instant case, however, the Court saw insufficient evidence that the applicants had been effectively prevented from communicating their views to their fellow citizens. They had still been able to obtain individual permission from businesses within the Galleries to collect signatures, and to campaign on public access paths in the area or in the old town center.
Indeed, while private landowners generally have the right to determine who may access their property, the rights related to assembly may require positive measures of protection even in the sphere of relations between individuals UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 84. UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 84. .
UN Human Rights Council, Joint report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association and the Special Rapporteur on extrajudicial, summary or arbitrary executions on the proper management of assemblies, UN Doc. A/HRC/31/66, 4 February 2016, para. 84. ↑