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Article 11 ECHR - Freedom of Assembly (Qualified Right) - Coggle Diagram

- - - - UCP v Turkey (1998)
        The Turkish Consitutional Court dissolved a newly formed political party because they considered its support for the right of the Kurds to self-determination to be a threat to Turkey’s territorial integrity. Held: dissolving the party was disproportionate to the aim pursued, so there was a breach of Article 11.
        
        Welfare Party v Turkey (2001)
        Held: wee a political party’s leaders incite violence or aims to destroy democracy, they are not protected by Article 11. There was therefore no breach of Article 11 when Turkey’s largest political party, which included its Prime Minister, was dissolved.
- - - - Ollinger v Austria (2006)
        A ceremony was being held in a cemetery to commemorate members of the Nazi S. A Green Party MP wanted to sage a silent protest. This was not permitted by the Austrian Courts, and one reason for this was a concern that a protest would threaten public safety should a confrontation ensue. Although the restriction was ultimately found to be disproportionate, the aim being pursued was a legitimate one.
        
        Pendragon v UK (1998)
        An order was made under s14A Public Order Act 1980 forbidding trespassers assemblies within four miles of Stonehenge. This was done in order to prevent disorder or crime associated with large gatherings of New Age Travellers at the summer solstice, so there was no breach of Article 11.
        
        Friend & Countryside Alliance v UK (2009)
        Held: the ban on fox hunting in the Hunting Act 2004 protected morals as it was “designed to eliminate the hunting and killing of animals for sport in a manner which the legislature judged to cause suffering and be morally and ethically objectionable”.
- - - - The Margin of Appreciation
        If a protest is specifically designed to disrupt activities, the state is afforded a wide margin of appreciation - Barraco v France (2009). However, a peaceful protest on a subject of public interest will see states given a narrow degree of flexibility - Stankov and UMOI v Bulgaria (2001).
        Where there is considerable consensus on an issue, such as gay rights, states cannot expect to be given a wide margin of appreciation. In Alekseyev v Russia the court held there to be no pressing social need for the banning of a gay pride march, and so the ban was not necessary in democratic society. In contrast, the interference with freedom of assembly in Cisse v France was proportionate as health conditions had deteriorated, and so the state had a wide margin of appreciation.
        
        Proportionality and the Margin of Appreciation
        The Court will consider whether or not the state exercised its discretion reasonably, carefully and in good faith. It must also look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”.
- - - - However, the state must balance competing interests - Applicant’s interests under A11 must be balanced against the rights of another or others who may be protected by other provisions of the ECHR e.g. A10 - freedom of expression + the rights of the State to regulate behaviour in society and to protect society. A fair balance must be struck this is what leads to contention - as opinions invariably differ as to whether the right balance has been struck.
        
        The right to protest, march of publicly express an opinion through demonstration is a fundamental right in any democracy. It is right that the the arms of the state - executive, legislature and Parliament should be openly challenged by ordinary citizens - this is what separates a democracy from a dictatorship.
        
        Similarly the right to join an organisation to challenge decisions made by public bodies is a democractic right as is the right not to be obliged to do so. In the UK - one of the signatories to the ECHR, citizens have the right to peaceful assembly and association with others which includes the right to join or form a trade union and also not to do so (Young, Jones & Webster v UK). However, democracy comes with a price and the state has a number of common law and statutory powers which allow them to curtail the right to protest.
        
        The state, mainly police, can use to interfere with rights.
  - - - For example, under the Terrorism Act 2000 terrorist groups and extremist political groups have been banned. However, this is justified on the grounds that A11 covers peaceful assembly and if the group can be said to incite violence or be a threat to democracy then any interference is justifiable. In fact in such cases A11 isn’t engaged at all, so the individuals affected wouldn’t be able to argue that their rights had been violated. It seems right that the despite the value of the convention rights, the balance in this type of situation should be weighted towards protecting the public and interests of national security.
        
        Several sections of the Public Order Act 1986 can be used to criminalise protests that in the opinion of the state, get out of hand for example riot (s.1) where there are 12 or more people who collectively threaten violence for a common purpose. Violent disorder (s.2); affray (s.3) etc. However, there is the requirement that for each of these 3 offences there must be evidence that a person of reasonable firmness present at the scene would fear for their own safety which ensures that the powers cannot be used in trivial situations. On the other hand the person or reasonable firmness doesn't actually have to be present, so the decision as to whether they would fear for their safety is a subjective view, typically decided by the police at the time of the assembly.
        
        Furthermore, s.12 and 13 enable a senior officer to place restrictions on assemblies and s.14 on associations. This can include restrictions on the numbers who can participate, the duration, the route and so forth - whilst this may be a valid restriction if it is designed to minimise the impact on others it can also be used to suppress assemblies and dilute their impact. This is why any restriction must be justified as being a proportionate response and if it isn’t the organiser has the right to challenge the restriction via judicial review, which acts as a safeguard against arbitrary abuse of power.