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.
The Human Rights Committee, the UN Special Rapporteur,[2] UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 60. UN Human Rights Council, Second Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/23/39, 24 April 2013, para. 60. the ECtHR,[3] Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 405. Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 405. the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly[4] OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 3.5 and Explanatory Notes, para. 45 OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 3.5 and Explanatory Notes, para. 45 and the AComHPR’s Guidelines on Freedom of Association and Assembly in Africa[5] AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 62, para. 17. AComHPR, Report of the Study Group on Freedom of Association and Assembly in Africa, 2014, p. 62, para. 17. all underline that organizers have the right to demonstrate “within sight and sound” of their target audience or target object, and that the authorities have a duty to facilitate the assembly at this location.
The ECtHR has also stated, more generally, that:
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.
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:
[Consider] ways of minimising disruption to ordinary life, for example by organising a temporary diversion of traffic on alternative routes or by taking other similar measures, and at the same time accommodating the organisers’ legitimate interest in assembling within sight and sound of their target audience.
If a simultaneous assembly (see Assembly Section 12) is planned in the same location, this is not a reason to deny approval for the venue, if there is no “clear and objective indication that both events cannot be managed in an appropriate manner through the exercise of policing powers”. Similarly, the fact that an assembly may annoy or provoke others (see Assembly Section 7) obliges the authorities to look for ways to allow the assembly to proceed without disturbance, rather than moving it to a less prominent location.[9] Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 422.See also Sáska v. Hungary, ECtHR, Judgment of 27 November 2012, para. 21. Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 422.See also Sáska v. Hungary, ECtHR, Judgment of 27 November 2012, para. 21.
In Stankov and the United Macedonian Organisation Ilinden v. Bulgaria [ click for full case explanation ]
In focus:
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:
[I]t is apparent that the time and the place of the ceremonies were crucial to the applicants, as well as for those attending the official ceremony. Despite the margin of appreciation enjoyed by the Government in such matters, the Court is not convinced that it was not possible to ensure that both celebrations proceeded peacefully either at the same time or one shortly after the other.
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.
, the ECtHR made it clear that a particular effort should be made to accommodate the assembly if the chosen location is of crucial importance to the organizers, for example because it is connected to a historic event. This additional effort may, for example, consist of the deployment of the police to facilitate the assembly.
Assemblies may not be limited to pre-determined locations
The right of the organizers to choose the venue implies that limiting assemblies to certain locations predetermined by law is not permissible. This has been confirmed by the Human Rights Committee:
The Committee observes that limiting pickets to certain predetermined locations … does not appear to meet the standards of necessity and proportionality under article 19 of the Covenant.
The UN Special Rapporteur has also underscored that limiting protests to specific areas “prevents organizers and participants from choosing venues they consider the most appropriate to express their aspirations and grievances.”
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:
The organizers of an assembly generally have the right to choose a location within sight and sound of their target audience and no restriction to this right is permissible, unless (a) imposed in conformity with the law, and (b) necessary in a democratic society, in the interests of national security or public safety, public order, protection of public health or morals or protection of the rights and freedoms of others.
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.
….
Such an interference will constitute a breach of Article 11 unless it is “prescribed by law”, pursues one or more legitimate aims under paragraph 2, and is “necessary in a democratic society” for the achievement of the aim or aims in question.
This means, in the first place, that any power the authorities have to deny the organizer’s preferred venue should be prescribed by law (see Assembly Section 4.2), in a way which effectively limits the discretion of the authorities. The ECtHR considered a Russian law that allowed authorities to make “well-reasoned” proposals to change the venue of an assembly to be unduly vague. The Court pointed out that it would be difficult if not impossible to prove that any decision was not well-reasoned.
Second, any refusal to use the chosen venue should pursue a legitimate aim (see Assembly Section 4.3), such as public order or safety. This could be the case if the number of participants expected by the organizers clearly exceeds the capacity of the proposed venue or there are objective security concerns.[19] Disk and Kesk v. Turkey, ECtHR, Judgment of 27 November 2012, paras. 29-32. Disk and Kesk v. Turkey, ECtHR, Judgment of 27 November 2012, paras. 29-32.
Third, the refusal must be genuinely necessary (see Assembly Section 4.4) and proportionate, meaning that the problems caused by the proposed venue cannot be mitigated and are sufficiently severe to justify the refusal. The authorities must “attach sufficient importance to freedom of assembly” and avoid setting the balance too much “in favour of protection of other interests, such as rights and freedoms of non-participants or avoidance of even minor disturbances to everyday life.”
In Chebotareva v. Russian Federation [ click for full case explanation ]In focus:
Chebotareva v. Russian Federation
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:
[T]he State party has not demonstrated to the Committee’s satisfaction that the impeding of the two pickets in question was necessary for the purpose of protecting the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. Moreover, the State party never refuted the author’s claim that no event actually occurred at Gorky Square on 7 October 2007, and that the city administration’s claim of a competing Teachers’ Day event was in fact a mere pretext given in order to reject the author’s request. In these circumstances, the Committee concludes that in the present case the State party has violated the author’s right under article 21 of the Covenant.
, the Human Rights Committee found a violation of the right to freedom of assembly because authorities wanted to redirect a picket to another location – which the organizer considered unsuitable – in circumstances where that was not clearly necessary.
Similarly, in Sáska v. Hungary [ click for full case explanation ]In focus:
Sáska v. Hungary
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 …
[O]n the date of the event planned by the applicant no parliamentary activity was underway … Therefore, the Court cannot but conclude that the prohibition of the demonstration did not respond to a pressing social need, even in the face of the applicant’s intransigence in considering the police’s conciliatory suggestion (see paragraph 8 above). Thus, the measure was not necessary in a democratic society.
, the ECtHR found that Hungarian authorities had violated the right to freedom of assembly by asking the organizer to limit a demonstration to a particular area of the square he wished to use, without providing compelling reasons why the entire square was unavailable.
A proper alternative venue should be proposed if the chosen one is truly unsuited
The Human Rights Committee has repeatedly stated that when authorities restrict freedom of peaceful assembly, they should be guided by the objective of facilitating the right:
When a State party imposes restrictions with the aim of reconciling an individual’s right to assembly and … interests of general concern, it should be guided by the objective of facilitating the right, rather than seeking to impose unnecessary or disproportionate limitations on it.
Consistently with this, the ECtHR held in Primov and Others v. Russia [ click for full case explanation ]In focus:
Primov and Others v. Russia
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.
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:
That offer was made at the last moment, when it was virtually impossible for the organisers to modify the form, scale and timing of the event. Thus, the alternative proposal made by the administration was, in the Court’s opinion, inappropriate.
that, if there are compelling reasons why a protest cannot go ahead in the organizer’s preferred place, it is “the authorities’ duty to reflect on the possible alternative solutions and propose another venue to the organisers.” Such an offer must be made in a timely manner, and not “at the last moment, when it [is] virtually impossible for the organisers to modify the form, scale and timing of the event.”
[27] Primov and Others v. Russia, ECtHR, Judgment of 12 June 2014, para. 147. Primov and Others v. Russia, ECtHR, Judgment of 12 June 2014, para. 147.
The alternative venue proposed by the authorities should be one which does not detract from the effectiveness of the protest. The UN Special Rapporteur has warned against “the practice whereby authorities allow a demonstration to take place, but only in the outskirts of the city or in a specific square, where its impact will be muted.” The ECtHR agrees:
[T] he location or time proposed by the authorities as an alternative to the location chosen by the organisers should be such that the message which they seek to convey is still capable of being communicated … The Court considers that the practice whereby the authorities allow an assembly to take place, but only at a location which is not within sight and sound of its target audience and where its impact will be muted, is incompatible with the requirements of Article 11 of the Convention.
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.
The UN Special Rapporteur and the IACHR have explicitly recognized that in a democratic society “the urban space is not only an area for circulation, but also a space for participation.” In a similar vein, the OSCE-ODIHR Guidelines on Freedom of Peaceful Assembly state that “public protest, and freedom of assembly in general, should be regarded as equally legitimate uses of public space as the more routine purposes for which public space is used (such as commercial activity or for pedestrian and vehicular traffic).”[33] OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para 20. OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para 20.
Thus, neither of these competing uses of public space takes automatic priority. The duty of the public authorities, in the words of the ECtHR, is “to strike a fair balance between the rights of those wishing to exercise their freedom of assembly and those others whose freedom of movement may … [be] frustrated temporarily.”
The authorities have a duty to manage traffic around an assembly
States have a positive obligation to facilitate peaceful assemblies. The IACHR has indicated that
the competent institutions of the state have a duty to design operating plans and procedures that will facilitate the exercise of the right of assembly … [including] rerouting pedestrian and vehicular traffic in a certain area.
The ECtHR has similarly recognized an obligation for the authorities to take
necessary measures in order to minimise any disruption to traffic or other security measures such as providing first-aid services at the site of the demonstrations, in order to guarantee the smooth conduct of the events.
In Körtvélyessy v. Hungary, the Hungarian authorities had prohibited a demonstration out of fear that it would have seriously hampered circulation in the area.
The ECtHR found a violation of the right to assemble, as it was not convinced that proper facilitation measures “could not have helped to accommodate the demonstration without serious traffic disruption.”
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 lack of actual impact prompted the ECtHR to find a violation of the right to assemble in Körtvélyessy v. Hungary [ click for full case explanation ]In focus:
Körtvélyessy v. Hungary
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 …
Consequently, the Court concludes that the authorities, when issuing the prohibition on the demonstration and relying on traffic considerations alone, failed to strike a fair balance between the rights of those wishing to exercise their freedom of assembly and those others whose freedom of movement may have been frustrated temporarily, if at all.
. The Court was not convinced that a planned assembly on a dead-end street, albeit with shops and other facilities, would have caused a level of traffic disruption sufficient to justify the ban imposed on it.
The joint report on the proper management of assemblies recognizes that if an assembly prevents access to essential services, such as blocking the emergency entrance to a hospital, this may justify dispersal.
Second, the duration of the traffic disruption is an important criterion. The ECtHR has repeatedly criticized domestic authorities for acting too quickly to end assemblies that threatened to cause traffic disruption. In general, demonstrators should be given an effective opportunity to convey their views (see Assembly Section 11.5), provided there is no urgent danger to public order.
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
notification would have enabled the authorities to take the necessary measures in order to minimise the disruption to traffic that the demonstration could have caused during rush hour.
This implies that if the authorities are aware in advance of an assembly, the threshold to interfere with it because of traffic disruption is higher.
A good example of the application of this principle is the case before the ECJ of Eugen Schmidberger, Internationale Transporte und Planzüge v. Austria. [ click for full case explanation ]In focus:
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.
An action of that type usually entails inconvenience for non-participants, in particular as regards free movement, but the inconvenience may in principle be tolerated provided that the objective pursued is essentially the public and lawful demonstration of an opinion.
A somewhat comparable dispute has played out in South American between Uruguay and Argentina. Uruguay’s authorization of the construction of a pulp mill on the banks of the river separating the two countries caused deep concern on the Argentine side about possible pollution. Beginning in 2005, demonstrators began to intermittently block the bridges across the river. The Argentine authorities did not intervene, and as a result the main border crossing was closed for months on end. In July 2006, Uruguay brought a case against Argentine under the dispute settlement system of the Mercosur trading bloc. The arbitral tribunal hearing the case acknowledged the importance of the rights to freedom of expression and peaceful assembly, but considered that Argentina had given them unreasonable priority over the free circulation of goods and services by allowing blockades to continue for as long as three months at a peak time for commerce and tourism.
The dispute arose from a protest blockade of a major motorway lasting almost 30 hours. The organizers had given the Austrian authorities one month’s advance notice of their intention to stage the blockade. The authorities allowed the protest to go ahead, and took various preparatory measures to limit the disruption to road traffic. A transport company that nevertheless suffered some delay demanded compensation, arguing that the assembly should have been banned to safeguard the free movement of goods. The ECJ sided with the Austrian authorities, finding that they had justifiably considered that they were required to permit the demonstration.
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:
although no notification had been given, the authorities had prior knowledge … that such a demonstration would take place on that date and could have therefore taken preventive measures.
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.
In Kudrevičius and Others v. Lithuania [ click for full case explanation ]In focus:
Kudrevičius and Others v. Lithuania
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 intentional failure by the organisers to abide by these rules and the structuring of a demonstration, or of part of it, in such a way as to cause disruption to ordinary life and other activities to a degree exceeding that which is inevitable in the circumstances constitutes conduct which cannot enjoy the same privileged protection under the Convention as political speech or debate on questions of public interest or the peaceful manifestation of opinions on such matters.
At the same time, the Court stressed that the authorities are still bound to respond to such roadblocks in a proportionate manner:
The absence of prior authorisation and the ensuing “unlawfulness” of the action do not give carte blanche to the authorities; they are still restricted by the proportionality requirement of Article 11. Thus, it should be established why the demonstration was not authorised in the first place, what the public interest at stake was, and what risks were represented by the demonstration. The method used by the police for discouraging the protesters, containing them in a particular place or dispersing the demonstration is also an important factor in assessing the proportionality of the interference.
The Court ultimately found that there had not been a violation of the applicants’ rights. It noted that the farmers had been able to hold peaceful assemblies at specific locations as requested beforehand, and that when they moved onto the motorways, the police had not forcefully dispersed these gatherings. The sanctions imposed afterwards, while criminal in nature, were not excessive.
The UN Special Rapporteur expressed his concern at the Court’s willingness to permit the use of criminal law in this context.
the Court’s Grand Chamber stated:
[T]he intentional serious disruption, by demonstrators, to ordinary life and to the activities lawfully carried out by others, to a more significant extent than that caused by the normal exercise of the right of peaceful assembly in a public place, might be considered a “reprehensible act” within the meaning of the Court’s case-law.
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 Balçik and Others v. Turkey, the Court criticized the Turkish authorities’ lack of tolerance towards the temporary blocking of a single tram line.
9.4 Blanket bans on assemblies at particular locations, such as public buildings
The UN Special Rapporteur has stated on several occasions that blanket location restrictions on assemblies are intrinsically disproportionate and should thus not be imposed. This includes spaces outside iconic buildings:
Spaces in the vicinity of iconic buildings such as presidential palaces, parliaments or memorials should also be considered public space, and peaceful assemblies should be allowed to take place in those locations. In this regard, the imposition of restrictions on “time, place and manner” should meet the aforementioned strict test of necessity and proportionality.
This position is supported by regional bodies and by the jurisprudence of the Human Rights Committee, which emphasizes that assemblies should be able to take place “within sight and sound” of their target audience.[56] See, for example, Denis Turchenyak et al. v. Belarus, Human Rights Committee, Views of 10 September 2013, UN Doc. CCPR/C/108/D/1948/2010, para. 7.4; Pavel Kozlov et al. v. Belarus, Human Rights Committee, Views of 7 May 2015, UN Doc. CCPR/C/113/D/1949/2010, para. 7.4; and Leonid Sudalenko v. Belarus, Human Rights Committee, Views of 28 December 2015, UN Doc. CCPR/C/115/D/2016/2010, para. 8.4. See, for example, Denis Turchenyak et al. v. Belarus, Human Rights Committee, Views of 10 September 2013, UN Doc. CCPR/C/108/D/1948/2010, para. 7.4; Pavel Kozlov et al. v. Belarus, Human Rights Committee, Views of 7 May 2015, UN Doc. CCPR/C/113/D/1949/2010, para. 7.4; and Leonid Sudalenko v. Belarus, Human Rights Committee, Views of 28 December 2015, UN Doc. CCPR/C/115/D/2016/2010, para. 8.4.
The ECtHR has repeatedly found violations of freedom of assembly when domestic authorities prohibited or forcefully dispersed assemblies outside a range of public buildings, including parliaments, government buildings,[58] Christian Democratic People’s Party v. Moldova, ECtHR, Judgment of 14 February 2006; Özbent and Others v. Turkey, ECtHR, Judgment of 9 June 2015. Christian Democratic People’s Party v. Moldova, ECtHR, Judgment of 14 February 2006; Özbent and Others v. Turkey, ECtHR, Judgment of 9 June 2015. courts,[59] Sergey Kuznetsov v. Russia, ECtHR, Judgment of 23 October 2008; Malofeyeva v. Russia, ECtHR, Judgment of 13 May 2013; Kakabadze and Others v. Georgia, ECtHR, Judgment of 2 October 2012. Sergey Kuznetsov v. Russia, ECtHR, Judgment of 23 October 2008; Malofeyeva v. Russia, ECtHR, Judgment of 13 May 2013; Kakabadze and Others v. Georgia, ECtHR, Judgment of 2 October 2012. and the house of a prime minister.[60] Patyi and Others v. Hungary, ECtHR, Judgment of 7 October 2008. Patyi and Others v. Hungary, ECtHR, Judgment of 7 October 2008.
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.
In the circumstances of the case, the Court concluded that the law at issue violated the right to freedom of assembly because it did not “address a precise risk to public safety or a precise risk of disorder with the minimum impairment of the right of assembly.” For example, the law prevented any demonstration near a courthouse, not only those held with the intention of interfering with the administration of justice.[63] Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 440. Lashmankin and Others v. Russia, ECtHR, Judgment of 7 February 2017, para. 440.
The scope for restrictions on assemblies inside public buildings may be greater.
In Taranenko v. Russia [ click for full case explanation ]In focus:
Taranenko v. Russia
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.
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.
the ECtHR held that freedom of expression “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.”
9.5 Assemblies on private property
Assemblies which take place on private property enjoy the protection of the right to freedom of assembly, meaning that any restriction placed on them by the authorities must conform to the requirements of the three-prong test (see Assembly Section 4).
International law does not impose any duty on owners of private property to consent to assemblies taking place there.
However, in Appleby and others v. United Kingdom [ click for full case explanation ]In focus:
Appleby and others v. United Kingdom
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.
Before the ECtHR, the applicants argued that the State was directly responsible for the interference with their freedom of expression and assembly as it had built the Galleries on public land and approved the transfer into private ownership. The Court disagreed, finding that this circumstance did not make the State directly responsible for the manager’s actions. The applicants also argued that the State was indirectly responsible, as it was under a positive obligation to secure the exercise of their rights within the Galleries, since access to the town center was essential for effective communication with the population.
The Court chose to analyze this argument under Article 10 ECHR (freedom of expression) but indicated that largely identical considerations would apply under Article 11 (freedom of peaceful assembly). It rejected the notion that there is an automatic right of entry to property for expressive purposes; at the same time, it accepted that a positive obligation may arise for the State to ensure access to property if effective exercise of freedom of expression would otherwise become impossible:
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.
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.
, the ECtHR held that if the privatization of public space reaches a stage where effective protest is no longer possible, the State may need to step in and ensure access to private spaces.
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.