The State Must Facilitate and Enable Freedom of Peaceful Assembly

Bukta v Hungary [2007] ECHR Application No 25691/04 (17 July 2007) Makhmudov v Russia [2007] ECHR Application No 35082/04 (26 July 2007)

Summary

The European Court of Human Rights has considered two cases in which it held that the relevant State party had interfered with the right to freedom of peaceful assembly in art 11 of the European Convention of Human Rights.  That right is protected by s 16(1) of the Victorian Charter.  In both cases, domestic law required that the authorities be informed in advance of any planned public assembly.

In Bukta v Hungary, the Court held that the requirement to give prior notice of an assembly is not itself necessarily a breach of art 11.  However, in situations where it would have been impossible to comply with the notice requirement, to disperse an assembly for the sole reason that such notice was not given amounted to a disproportionate restriction of the right to assembly not warranted in a democratic society.

In Makhmudov v Russia, the Court held that where a State withdraws permission for an approved public assembly, it must substantiate its reasons for doing so or explain why those reasons cannot be substantiated.  Where a State fails to do so, the interference with the right to peaceful assembly will be considered arbitrary and unjustified.

General Principles

In both cases, the Court took a two step approach to assessing whether there had been a breach of art 11.  First, it asked whether there was an interference with the right to peaceful assembly.  Secondly, it considered whether that interference was justified under art 11(2).

Art 11(2) provides that restrictions placed on the right to peaceful assembly must be

prescribed by law and … necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others…

According to the Court, the right to freedom of peaceful assembly is a fundamental right which is a foundation of a democratic society.  Measures which interfere with this right must be:

• required by a democratic society;
• justified by ‘convincing and compelling reasons’;
• ‘proportionate to the legitimate aim pursued’ in light of all the facts of the case; and
• imposed by a State ‘reasonably, carefully and in good faith.’

Bukta v Hungary

The applicants organized a demonstration outside a government function.  They could not comply with the three day notice period, because they only planned the demonstration one day before it was held, when the Prime Minister announced he would attend the function.  Approximately 150 people participated in the demonstration, which was then disbanded by police.

The Court considered that the requirement to give notice did pursue a legitimate aim: it allowed the police to prevent disorder and protect the rights of others.  However, dispersing the demonstration for the sole reason that prior notice was not given was disproportionate and not justified in this case.

Because the Prime Minister only announced his intention to attend the function the day before the event, the applicants either had to forego their right to peaceful assembly or exercise that right without complying with the notice period.  The Court held that requiring them to forego their right altogether did not pursue a legitimate aim.

The Court reiterated that public authorities must ‘show a certain degree of tolerance towards peaceful gatherings’ which present no danger to public order except for a minor, inevitable level of disturbance.

Makhmudov v Russia

The applicant organised a public assembly and informed the relevant authority.  Notice of the assembly was initially accepted but later withdrawn, allegedly to ensure public safety due to an ‘unexpected outbreak of terrorist activities.’  A few dozen residents still assembled, and the police dispersed them by force.  The applicant was charged with organizing an unauthorized assembly.

The Court considered that the cancellation of the assembly was arbitrary and without justification for two reasons.  First, the Government failed to substantiate its claims of terrorist activity.  Where a Government does not provide information to support its reasons for cancelling an assembly, nor provide a satisfactory explanation for failing to do so, it can be inferred that the cancellation was not necessary.

Second, the fact that the Government-organised ‘Day of the City’ celebrations went ahead throughout Moscow during the same period as the public assembly, and were in fact attended by thousands of people, indicated that the alleged concerns of terrorist activity could not have made cancellation of the assembly necessary.

Implications for the Victorian Charter

The judgment of the Court in these cases will be relevant to future consideration of s 16(1) of the Charter, which guarantees the right to peaceful assembly.  Section 7(2) of the Charter allows restrictions to be placed on Charter rights in similar circumstances to those in art 11(2) of the European Convention.

Such limitations must be ‘under law,’ reasonable and ‘demonstrably justified in a free and democratic society … taking into account all relevant factors’, including whether there are less restrictive means available to achieve the purpose of the limitation.

The principles expressed by the Court will likely influence interpretation of s 16(1) of the Charter, such that:

• it would not be considered legitimate to disperse an otherwise permissible assembly for the sole reason that a notice period has not been complied with in circumstances where compliance with the notice period was unreasonable; and
• the Government would likely be required to substantiate its reasons (or provide an explanation for why those reasons cannot be substantiated) for not allowing an assembly to proceed, or overturning an earlier decision to allow an assembly (this principle may also apply to the dispersal of an otherwise permissible assembly).

The European Court’s recognition that measures required to protect the rights of others (such as a 3 days prior notice requirement) can be a legitimate aim of restrictions will also be relevant to s 7(3) of the Charter, which states that the rights guaranteed by the Charter are not to detract from the rights of others.

Jane Tipping, Articled Clerk, Mallesons Stephen Jaques Human Rights Law Group