Galstyan v Armenia  ECHR 26986/03 (15 November 2007)
The European Court of Human Rights has recently considered the content and application of the rights to freedom of peaceful assembly and association, holding that ‘the right to freedom of assembly is a fundamental right in a democratic society’ and that any exceptions to the right ‘must be narrowly interpreted and the necessity for any restrictions must be convincingly established’.
On 7 April 2003, the applicant, Arsham Galstyan, participated in a Mother’s Day protest against the policies and practices of the government, particularly in relation to women. After leaving the demonstration, he was arrested and charged for ‘obstructing traffic and behaving in an anti-social way at a demonstration’. He was subsequently convicted and sentenced to 3 days of detention for ‘obstructing street traffic, violating public order by making a loud noise, and inciting other participants of the demonstration to do the same’. In his complaint to the European Courthe alleged, inter alia, that his arrest and detention unlawfully interfered with his rights to freedom of expression and freedom of peaceful assembly guaranteed by arts 10 and 11 of the European Convention.
The Court considered the issues of freedom of expression and peaceful assembly together, noting that the ‘protection of personal opinions, secured by art 10, is one of the objectives of freedom of peaceful assembly as enshrined in art 11’.
The Court noted that there was no evidence that the demonstration was not intended to be peaceful or that it was prohibited or unauthorised. The Court held that by participating in the demonstration, the applicant availed himself of his right to freedom of peaceful assembly and that the conviction that followed therefore amounted to an interference with that right.
Having found a prima facie interference with the right to freedom of peaceful assembly, the Court then considered whether the interference was justified, which requires that it be ‘prescribed by law’, pursue a ‘legitimate aim’, and be ‘necessary in a democratic society’ for the achievement of that aim.
‘Prescribed by law’
The Court stated that a rule or norm can only be regarded as a ‘law’ if it is formulated with sufficient precision to enable a person to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail. In the present case, the applicant was convicted under a domestic law which prescribes a penalty for actions which disturb public order and peace. The Court considered that this norm is formulated with sufficient precision to satisfy the requirements of art 11 and therefore that the interference was ‘prescribed by law’.
The Court found that the domestic law was directed towards ‘public order’ and the ‘prevention of disorder’ and that such objectives constituted legitimate aims.
‘Necessary in a democratic society’
In considering whether the interference with the applicant’s human rights was justified, the Court observed that ‘the right to freedom of assembly is a fundamental right in a democratic society and is one of the foundations of such a society’. Having regard this, any exceptions to the right ‘must be narrowly interpreted and the necessity for any restrictions must be convincingly established’. The Court stated that, in certain circumstances, charges or sanctions following from participation in an unauthorised demonstration or from inciting violence at a demonstration may be compatible with what is necessary in a democratic society. It further stated, however, that ‘the freedom to take part in a peaceful assembly is of such importance that a person cannot be subjected to a sanction – even one at the lower end of the scale of disciplinary penalties – for participation in a demonstration which has not been prohibited, so long as this person does not himself commit any reprehensible act on such an occasion’.
On the facts of the present case, the Court found that the ‘obstruction of street traffic’ conviction followed from the applicant’s physical presence at a demonstration held on a street where traffic had already been suspended by consequence of the demonstration. As to the conviction for making loud noise, the Court noted that there was no suggestion that this involved any obscenity or incitement to violence and, moreover, that it is ‘hard to imagine a huge political demonstration, at which people express their opinion, not generating a certain amount of noise.’
Having regard to the above, the Court concluded that ‘the applicant was sanctioned for the mere fact of being present and proactive at the demonstration in question, rather than for committing anything illegal, violent or obscene in the course of it’ and that this amounted to an interference with the applicant's right to freedom of peaceful assembly which was not ‘necessary in a democratic society’.
Implications for the Victorian Charter
This decision may be relevant to the interpretation and application of s 15 (freedom of expression) and s 16 (freedom of peaceful assembly and association) of the Charter, particularly in so far as such rights may be limited pursuant to s 7.
The decision confirms that the rights to freedom of expression and assembly are fundamental to a free and democratic society and that any restrictions on these rights must be examined with particular care and scrutiny (see also Vereinigung Bildender v Kunstler v Austria  ECHR 68354/01 (25 January 2007)). In addition to the observations of the European Court in the present case, comparative jurisprudence clearly establishes that the right to peaceful assembly may impose a positive obligation on public authorities to facilitate peaceful assemblies (see, eg, R (Laporte) v Chief Constable of Gloucester Constabulary  EWCA Civ 1639) and to take action to protect peaceful demonstrators from counter-demonstrators (see, eg, Platform Artze fur das Leben v Austria (1991) 13 EHRR 204). The positive obligation of public authorities to secure genuine and effective respect for freedom of association and assembly is of particular importance to those with unpopular views or belonging to minorities because they are more vulnerable to victimisation (see, eg, Baczkowski v Poland  ECHR 1543/06 (3 May 2007)).
Philip Lynch is Director of the Human Rights Law Resource Centre