10. The manner of assemblies

Freedom of assembly includes the right to choose the manner in which the assembly is organized. The ECtHR has stated:

For the Court, the right to freedom of assembly includes the right to choose the time, place and modalities of the assembly, within the limits established in paragraph 2 of Article 11.^[1]

Moreover, in Women on Waves and Others v. Portugal, [ click for full case explanation ]

In focus:
Women on Waves and Others v. Portugal

The case of Women on Waves and Others v. Portugal arose from a decision to deny the vessel Borndiep entry to Portuguese territorial waters. The applicant associations had chartered this vessel for use in a campaign for the decriminalization of abortion, and planned to hold meetings on sexual and reproductive health and rights on board. The Portuguese authorities sent a warship to ensure the vessel would not enter port.

Before the ECtHR, Portugal argued that the applicants had not been prevented from expressing themselves, as they could have organized their meetings on land. The European Court, however, considered that the denial of permission to use the vessel restricted the applicants’ rights, as the manner of spreading their ideas was important for them:

En l’occurrence, ce n’était pas uniquement le contenu des idées défendues par les requérantes qui était en cause mais également le fait que les activités choisies afin de communiquer de telles idées – comme les séminaires et ateliers pratiques en matière de prévention des maladies sexuellement transmissibles, de planning familial et de dépénalisation de l’interruption volontaire de grossesse – auraient lieu à bord du navire en cause, ce qui revêtait une importance cruciale pour les requérantes et correspondait à une activité menée depuis un certain temps par la première requérante dans d’autres Etats européens. ^[3]

Unofficial translation:

In this case, it was not only the content of the ideas advocated by the applicants that was at issue, but also the fact that the activities chosen to communicate such ideas – such as seminars and workshops on the prevention of sexually transmitted diseases, family planning and the decriminalization of abortion – would take place on board the vessel in question, which was of crucial importance to the applicants and corresponded to an activity which had been carried out for some time by the first applicant in other European States.

The Court acknowledged the Portuguese authorities’ fear that the vessel was carrying medications which might be used to perform unlawful abortions, but considered they could have reached their objective through less restrictive measures, such as seizing the medications, instead of denying the Borndiep entry and deploying a warship against this civilian vessel.^[4]

the European Court underlined the importance that the form of the activity can have for those seeking to protest:

[D]ans certaines situations le mode de diffusion des informations et idées que l’on entend communiquer revêt une importance telle que des restrictions … peuvent affecter de manière essentielle la substance des idées et informations en cause. Tel est notamment le cas lorsque les intéressés entendent mener des activités symboliques de contestation à une législation qu’ils considèrent injuste ou attentatoire aux droits et libertés fondamentaux.^[2]

Unofficial translation:

In certain situations the mode of dissemination of the information and ideas to be communicated is of such importance that restrictions … may substantially affect the substance of the ideas and information in question. This is particularly the case where the persons concerned intend to carry out symbolic activities in protest against legislation which they regard as unfair or as infringing on fundamental rights and freedoms.

In some instances, limitations on the manner of assemblies – such as the use of sound-amplification equipment – may be justifiable. The UN Special Rapporteur,^[5] the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly^[6] and the AComHPR’s Guidelines on Freedom of Association and Assembly in Africa ^[7] emphasize that any such restrictions must meet the tests of necessity and proportionality (see Assembly Section 4.4).

10.1 Restrictions on masks, symbols and clothing

The UN Special Rapporteur has expressed concern at laws that prohibit the wearing of a mask during assemblies, and has pointed out that there may be legitimate reasons to cover one’s face during a demonstration, including fear of retribution.^[8] The OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly state that masks worn for expressive purposes (rather than to avoid arrest) should in principle be permitted.^[9]

The use of symbols during assemblies, both on clothing and flags, has given rise to a number of cases before the ECtHR. The Court has stated, in general terms, that:

for the determination of the proportionality of a specific restrictive measure, the location and the timing of the display of a symbol or of other expressions with multiple meanings play an important role.^[10]

In Vajnai v. Hungary and Fratanoló v. Hungary, the applicants had been sanctioned for using a “totalitarian symbol” in public, after wearing a five-pointed red star while participating in an assembly. The European Court was mindful that for some, the symbol stood for the mass human rights violations committed under communism, but for others it represented the struggle for a fairer society, as well certain lawful political parties in different countries.^[11] A “careful examination of the context” was needed when deciding whether a ban was permitted.^[12] In this instance the context did not justify the ban:

[F]or a restriction on the display of that symbol to be justified, it was required that there was a real and present danger of any political movement or party restoring the Communist dictatorship. However, the Government had not shown the existence of such a threat … the ban in question was too broad in view of the multiple meanings of the red star… and there was no satisfactory way to sever the different meanings of the incriminated symbol.^[13]