2. Significance of the ”peacefulness” requirement

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.^[1] 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.^[2]

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.^[3]

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.^[4] 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.^[5]

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.^[6]

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.^[7]

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”.^[8] 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.^[9]

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.^[49]

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.^[50]

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.^[51]

The UN Special Rapporteur expressed his concern at the Court’s willingness to permit the use of criminal law in this context.^[52]

, 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 (see Assembly Section 4.4) 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.^[10]

UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 25; OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 1.3. ↑
Christian Democratic People’s Party v. Moldova (no. 2), ECtHR, Judgment of 2 February 2010, para. 23; see also Schwabe and M.G. v. Germany, ECtHR, Judgment of 1 December 2011, para. 103 and Christians against Racism and Fascism v. the United Kingdom, EComHR, Decision of 16 July 1980, para. 4. ↑
Ziliberberg v. Moldova, ECtHR, Decision of 4 May 2004, para. 2. ↑
UN Human Rights Council, First Thematic Report of the Special Rapporteur on the rights to freedom of peaceful assembly and of association, Maina Kiai, UN Doc. A/HRC/20/27, 21 May 2012, para. 25; OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Explanatory Notes, para. 25. ↑
Christian Democratic People’s Party v. Moldova (no. 2), ECtHR, Judgment of 2 February 2010, para. 23; see also Frumkin v. Russia, ECtHR, Judgment of 5 January 2016, para. 98. ↑
Karpyuk and Others v. Ukraine, ECtHR, Judgment of 6 October 2015, para. 202. ↑
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. ↑
OSCE-ODIHR and Venice Commission, Guidelines on Freedom of Peaceful Assembly, 2nd edn, 2010, Guideline 1.3. ↑
Karpyuk and Others v. Ukraine, ECtHR, Judgment of 6 October 2015, para. 207. ↑
Kudrevičius and Others v. Lithuania, ECtHR, Grand Chamber Judgment of 15 October 2015, paras. 93-98. ↑