12.1 Are the authorities required to allow multiple demonstrations at the same place and time?
If multiple groups wish to assemble in the same place at the same time for separate demonstrations, the authorities should as far as possible take steps to facilitate this. The UN Special Rapporteur has stated:
In the case of simultaneous assemblies at the same place and time, the Special Rapporteur considers it good practice to allow, protect and facilitate all events, whenever possible.
This view is echoed in the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly and the AComHPR’s Study Group on Freedom of Association and Assembly in Africa.
In Lashmankin and Others v. Russia, the ECtHR held that the Russian authorities’ practice of automatically proposing to change the location of a planned assembly if it coincided with another gathering was impermissible. A change of venue may only be proposed if there are genuine reasons that both events cannot be accommodated simultaneously:
The Court considers that the refusal to approve the venue of a public assembly solely on the basis that it is due to take place at the same time and at the same location as another public event and in the absence of a clear and objective indication that both events cannot be managed in an appropriate manner through the exercise of policing powers, is a disproportionate interference with the freedom of assembly.
The OSCE-ODIHR Guidelines suggest that, if it is genuinely impossible to hold both events at the same time, the parties should be encouraged to find a mutually satisfactory resolution. If that fails, a non-discriminatory method should be found to allocate the events to different locations, such as drawing lots. The Guidelines caution that while a “first come, first served” rule may be legitimate, it can be abused by submitting early notice of an assembly to thwart another planned event.
12.2 How should counter-demonstrations be managed?
The duty of the authorities to enable simultaneous assemblies takes on particular importance where participants in one assembly are protesting against the other one. This follows from the principle that demonstrators have a right to assemble within sight and sound of their target audience (see Assembly Section 9.1).
At the same time, the authorities are also under an obligation to ensure that the counter-demonstration does not have the effect of inhibiting the right to demonstrate. The UN Special Rapporteur emphasizes the important role of law enforcement in this regard:
In the case of counter-demonstrations, which aim at expressing discontent with the message of other assemblies, such demonstrations should take place, but should not dissuade participants of the other assemblies from exercising their right to freedom of peaceful assembly. In this respect, the role of law enforcement authorities in protecting and facilitating the events is crucial.
Similar language can be found in the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly and the report of the AComHPR’s Study Group on Freedom of Association and Assembly in Africa.
The applicant in the case Plattform “Ärzte für das Leben” v. Austria was an association of doctors opposed to abortion. In 1980 and 1982 it held two demonstrations in Austria which were disrupted by counter-demonstrators, despite the presence of a large contingent of police. The first demonstration consisted of a religious service in a church followed by a further ceremony at an altar on a hillside. Counter-demonstrators disrupted the march to the hillside by mingling with the marchers and shouting down their prayers; subsequently they interrupted the service at the altar by using loudspeakers and throwing eggs and clumps of grass. Special riot-control units placed themselves between the opposing groups when tempers had risen to the point where violence threatened to break out. The second demonstration took place in the cathedral square in Salzburg. One hundred policemen were sent to the scene to separate the participants from their opponents and avert the danger of direct attacks; they eventually cleared the square so as to prevent any disturbance of the doctors’ religious service.
The ECtHR held that freedom of peaceful assembly imposes a duty on the State to take positive measures to ensure that participant are able to hold a demonstration without having to fear that they will be subjected to physical violence by their opponents. However, the Court also added that the authorities have a wide discretion to choose the appropriate measures and that their obligation is one of effort, not of result:
While it is the duty of Contracting States to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, they cannot guarantee this absolutely and they have a wide discretion in the choice of the means to be used. In this area the obligation they enter into under Article 11 (art. 11) of the Convention is an obligation as to measures to be taken and not as to results to be achieved.
In the instant case, the Court found that although there had been some incidents, the Austrian police had overall taken reasonable and appropriate measures and managed to ensure that the applicants’ assemblies were able to proceed to their conclusion. There was accordingly no violation of the right to freedom of peaceful assembly.
, the ECtHR stressed that freedom of peaceful assembly includes the right to voice an opinion that others find annoying or offensive (see Assembly Section 7). The authorities are under a positive obligation protect participants in an assembly against physical violence by opponents:
A demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such a fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter-demonstrate cannot extend to inhibiting the exercise of the right to demonstrate. Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the part of the State not to interfere: a purely negative conception would not be compatible with the object and purpose of Article 11 (art. 11) … Article 11 (art. 11) sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be.
The fact that a demonstration may attract a violent counter-demonstration is no ground to ban or move it (see Assembly Section 7). Nor may the counter-demonstration be banned merely because of a fear – even a justified one – of a violent confrontation. Wherever possible, the authorities must take adequate preventive measures. In Fáber v. Hungary, the ECtHR stated:
In the exercise of the State’s margin of appreciation, past violence at similar events and the impact of a counter-demonstration on the targeted demonstration are relevant considerations for the authorities, in so far as the danger of violent confrontation between the two groups – a general problem of public order – is concerned. Experience with past disorders is less relevant where the situation, as in the present case, allows the authorities to take preventive measures, such as police presence keeping the two assemblies apart and offering a sufficient degree of protection, even if there was a history of violence at similar events necessitating police intervention.
Where there is a known history of public hostility towards a minority group that has announced an intention to stage an assembly, the duty of the authorities goes beyond deploying sufficient police resources; they should use all available means to advocate tolerance, such as through public statements and warnings to potential law-breakers. In Identoba and Others v. Georgia, for example, the applicants, members of the lesbian, gay, bisexual and transgender (LGBT) community in Georgia, had been insulted, threatened and assaulted by a larger group of counter-demonstrators during a peaceful demonstration to mark the International Day against Homophobia. Rather than restraining the most aggressive counter-demonstrators, the police had briefly detained some of the applicants, allegedly for their own protection. The ECtHR found a violation of the rights to freedom of assembly and to freedom from discrimination. It stated:
[G]iven the attitudes in parts of Georgian society towards the sexual minorities, the authorities knew or should have known of the risk of tensions associated with the applicant organisation’s street march … They were thus under an obligation to use any means possible, for instance by making public statements in advance of the demonstration to advocate, without any ambiguity, a tolerant, conciliatory stance as well as to warn potential law-breakers of the nature of possible sanctions. Furthermore, it was apparent from the outcome of the LGBT procession, that the number of police patrol officers dispatched to the scene of the demonstration was not sufficient, and it would have been only prudent if the domestic authorities, given the likelihood of street clashes, had ensured more police manpower by mobilising, for instance, a squad of anti-riot police.