Most major global and human rights instruments guarantee a right of “peaceful” assembly (see Article 20 of the UDHR, Article 21 of the ICCPR, and, at the regional level, Article 15 of the ACHR and Article 11 of the ECHR). Article 11 of the ACHPR, however, simply guarantees a right “to assemble freely with others”.
2.1 The intentions of the organizers and each participant determine whether his or her right is protected
If the organizers of an assembly have peaceful intentions, they are exercising the right to peaceful assembly. This does not change if, despite these intentions, violent acts are committed by others. The ECtHR has stated:
The right to freedom of peaceful assembly is secured to everyone who has the intention of organising a peaceful demonstration. The possibility of violent counter-demonstrations or the possibility of extremists with violent intentions joining the demonstration cannot as such take away that right.
The same applies to participants in an assembly; an individual whose intentions and actions are peaceful does not lose the protection of the right when others engage in violent acts. In Ziliberberg v. Moldova, the ECtHR held:
[A]n individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour. Although the demonstration gradually became violent, there is no indication that the applicant was himself involved in violence or that he had any violent intentions. … Accordingly, the Court concludes that Article 11 is applicable in the present case.
2.2 Peaceful intentions must be presumed
The UN Special Rapporteur and the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly stress that when a person exercises the right to assemble, the peacefulness of his or her intentions must be presumed, until the opposite is demonstrated. The ECtHR agrees that the burden of proof is on the authorities:
The burden of proving the violent intentions of the organisers of a demonstration lies with the authorities.
Moreover, the fact that violence occurs is not sufficient proof that it was intended by the organizers:
[T]he mere fact that acts of violence occur in the course of a gathering cannot, of itself, be sufficient to find that its organisers had violent intentions.
Even if participants in an assembly are not peaceful and as a result forfeit their right to peaceful assembly, they retain all the other rights, subject to the normal limitations. No assembly should thus be considered unprotected.
2.3 That an assembly is obstructive does not mean it is not peaceful
The fact that the organizers intend to cause hindrance or obstruction to the person or entity against which a demonstration is directed does not mean their intentions are not “peaceful”. In Karpyuk and Others v. Ukraine, the ECtHR stated:
[T]he organisers intended the rally to be an obstructive, but peaceful, gathering intended to occupy the space around the Shevchenko monument and thus prevent the President of Ukraine from laying flowers there. According to the Court’s settled case-law, such obstructive actions in principle enjoy the protection of Articles 10 and 11.
In Kudrevičius and Others v. Lithuania, the Grand Chamber of the ECtHR struck a more cautious note regarding assemblies which deliberately disrupt the activities of third parties who are not the target of the protest, such as in this instance blockades of major highways. The Court still considered that the blockades were protected by the right to assemble, but signaled that a restriction might more easily pass the necessity test for interferences with freedom of assembly:
In the Court’s view, although not an uncommon occurrence in the context of the exercise of freedom of assembly in modern societies, physical conduct purposely obstructing traffic and the ordinary course of life in order to seriously disrupt the activities carried out by others is not at the core of that freedom as protected by Article 11 of the Convention … This state of affairs might have implications for any assessment of “necessity” to be carried out under the second paragraph of Article 11.
Nevertheless, the Court does not consider that the impugned conduct of the demonstrations for which the applicants were held responsible was of such a nature and degree as to remove their participation in the demonstration from the scope of protection of the right to freedom of peaceful assembly under Article 11 of the Convention.
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. 9. ↑