Art 11(1) Everyone has the right to freedom of peaceful assembly and to:

• freedom of association with others, including
• the right to form and join trade unions

Art 11 (1) Everyone has the right to freedom of peaceful assembly and to freedom of association with others.

11(2) No restriction shall be placed on these rights other than those prescribed by law and are necessary in a democratic society in the interests of...

A group that is not part of the state pursuing an aim in a general interest.

McFeely v UK (1980)

Persons convicted of terrorism offences were not permitted to associate with other prisoners. Article 11 does not include a right to the company of others. Rather, it refers to the right to be part of a group, whether formal or informal, that is pursuing a purpose.

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.

Demir and Baykara v Turkey (2008)

The Turkish out refused to recognise the right of a trade union to bargain on its members behalf. Held: this was a breach of Article 11. he right to bargain collectively was protected by Article5, and states have a positive obligation to ensure that trade union rights are secured.

Laporte

The police stopped three coaches on their way to protest against the Iraq war and sent them back to London, citing concerns about breach of the peace. Held: The restriction was not prescribed by law as there is no power to take action short of arrest to prevent a breach of the peace which is not sufficiently imminent to justify arrest. Article 11 had therefore been breached.

No restrictions shall be placed on these rights other than those prescribed by law and are necessary in a democratic society in the interests of:

• National security or public safety
• Prevention of disorder or crime
• Protection of health and morals
• Protection of rights and freedoms of others

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.

1. Is there a pressing social need for the restriction?
2. Does the restriction correspond to that need?
3. If so, is the restriction a proportionate response to that need?
4. Are the reasons given relevant and sufficient?
   
   

Handyside v UK (1976)
Ollinger v Austria

Proportionate

• The rights of the individual to free assembly, association and to form and join a union.
• The rights of the community as a whole to be safe and protected.

Tabernacle v SoS Defence (2009)

The claimant was a member of the Aldermaston Women’s Peace Camp which had for a 23 year period peacefully assembled on one weekend each month near the Atomic Weapons Establishment located there by holding a weekend camp. In 2007, the Secretary of State for Defence introduced a bye law that banned camping in the controlled area near the site, although the public were still allowed to enter. Held: the restriction was disproportionate, because the weekend camp was the whole essence of the protest, despite the Secretary of State for Defence’s argument that the bye-law only restricted the manner in which they could protest. Article 1 had been breached.

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.

A11 is closely connected with Article 10 which guarantees freedom of expression. Both are designed to protect the freedom to share and express opinions, and try to persuade others to one's point of view, which are essential political freedoms in any democracy.

“While democracy values each individual, it also knows that individuals cannot get much done unless they band together” - Baroness Hale - Countryside Alliance v AG

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.

A11 is qualified right, not absolute, so if there there is a Law (common law or statute) which is clear and accessible and if the interference can be justified for one of the grounds set out in A11(2) e.g. in the interests of protection of health and morals, then the interference may well be acceptable.

Furthermore, Makhmudov v Russia (2007) - the ECtHR stated that the state has an obligation to safeguard peaceful assembly and to avoid unreasonable indirect restrictions. Assembly has a close relationship with democracy, so there must be convincing and compelling reasons to justify any interference with this right. Plus there is the added safeguard that the interference must be in accordance with the law and also that it must be proportionate.

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.