Last Updated on April 22, 2019 by LawEuro
Overview of the Case-law of the ECHR 2016
Freedom of assembly and association (Article 11)
Freedom of peaceful assembly [246]
The Frumkin v. Russia[247] judgment related to the State authorities’ positive obligation to communicate with the leaders of a protest demonstration in order to ensure its peaceful conduct.
The applicant was arrested during the dispersal of a political rally in Moscow. He was detained for a period of thirty-six hours and eventually sentenced to fifteen days’ administrative detention for obstructing traffic and disobeying police orders to refrain from doing so. In the Convention proceedings, he alleged among other things a breach of Article 11. The Court found for the applicant.
The judgment is noteworthy in that the Court had regard to the broader context in which the demonstration had been planned and in particular to the manner in which the police, during a stand-off with demonstrators which subsequently degenerated into violence, had responded to the wishes of the organisers to be authorised to hold the rally at what they believed to be a venue previously approved by the authorities. Using a cordon, the police sought to prevent the protestors from proceeding to the venue and tried to redirect them to an adjacent area. It was a matter of dispute between the parties as to whether approval had been given for the venue. The Court found on the facts that tacit, if not express, agreement had been given.
It is of interest that the Court examined the policing of the demonstration and the decision to disperse it from the standpoint of the authorities’ duty to communicate with the leaders of the assembly, which it considered to be an essential aspect of their positive obligation under Article 11 of the Convention to ensure the peaceful conduct of the assembly, to prevent disorder and to secure the safety of all involved. A number of points may be highlighted in this connection.
(i) As to the authorities’ fear that the protestors would set up a campsite on the venue, which justified the decision to deny them access to it, the Court observed that, although Article 11 did not guarantee a right to set up a campsite at a location of one’s choice, such temporary installations may in certain circumstances constitute a form of political expression, restrictions on which must comply with the requirements of the second paragraph of Article 10.
(ii) Whatever course of action the police deemed correct, it was incumbent on them to engage with the leaders in order to communicate their position openly, clearly and promptly.
(iii) The police authorities had not provided for a reliable channel of communication with the organisers before the rally and had failed to respond to developments in a constructive manner and to resolve the tension caused by the confusion over the venue.
(iv) The failure to take simple and obvious steps at the first signs of conflict had allowed it to escalate, leading to the disruption of what had previously been a peaceful assembly and ultimately its dispersal.
The Court went on to find a further breach of Article 11 having regard to the absence of any pressing social need which would have justified the applicant’s arrest and detention, and certainly not his imprisonment.
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The Gülcü v. Turkey[248] judgment concerned the compatibility with Article 11 of the Convention of the sentence imposed on a minor for participating in an illegal demonstration and engaging in acts of violence against police officers.
The applicant, who was fifteen at the time, was remanded in custody and subsequently convicted of membership of a proscribed organisation, promoting the aims of that organisation and resisting the police. The charges arose out of his participation in an illegal demonstration during which he had thrown stones at members of the security forces. The applicant, who had spent three months and twenty days in custody before being convicted, was given a prison sentence of seven years and five months in respect of all of the charges. He served part of that sentence before being released. In all, he was deprived of his liberty for a period of almost two years.
The Court examined the applicant’s arguments from the standpoint of an alleged interference with his right to freedom of assembly, as guaranteed by Article 11 of the Convention. It found that the Convention had been breached. The judgment is of interest for the following reasons.
In the first place, the Court noted that, even if the applicant had been convicted of an act of violence against police officers, there was nothing to suggest that when joining the demonstration he had had any violent intentions; nor had the organisers of the demonstration intended anything other than a peaceful assembly. On that account, and notwithstanding his acts of violence directed at the police officers present at the demonstration, the applicant could rely on Article 11 of the Convention.
Secondly, the Court took issue with the domestic court’s finding that the applicant’s participation in the illegal demonstration was proof of his membership of the proscribed organisation and of his intention to disseminate propaganda in support of it. It observed that the domestic court had failed to provide relevant and sufficient reasons for these conclusions, in breach of the procedural safeguards inherent in Article 11.
Thirdly, the Court noted the extreme severity of the penalty imposed. The applicant was fifteen years old at the time of the incident. However, the domestic courts failed to have regard to his young age both when remanding him in custody and when passing sentence. It is interesting to observe that the Court had regard in this connection to Article 37 of the UN Convention on the Rights of the Child and General Comment No. 10 (2007), according to which the arrest, detention or imprisonment of a child can be used only as a measure of last resort and for the shortest appropriate period of time.
As to the part of the sentence imposed for the stone-throwing incident (two years, nine months and ten days), the Court could accept that the authorities enjoyed a wider margin of appreciation when examining the need for an interference with the Article 11 rights of those involved in such reprehensible acts. However, given the applicant’s age the punishment could not be considered proportionate to the legitimate aims pursued.
Freedom of association
Cumhuriyet Halk Partisi[249], cited above, concerned the issue of the compatibility of the imposition of financial sanctions on a political party on account of irregularities in its expenditure discovered during inspection of its accounts.
The applicant, the main opposition party in Turkey, complained in the Convention proceedings that the Constitutional Court had ordered the confiscation of a substantial part of its assets following an inspection of its accounts which, according to the court’s findings, revealed that over the course of a number of financial years the applicant party had incurred expenses which could not be considered lawful expenditure in terms of the “objectives of a political party”. The amount covered by the confiscation orders represented the amount deemed to be unlawful expenditure. The applicant party’s case was essentially based on the authorities’ alleged failure to provide at the relevant time for a clear, foreseeable and predictable basis in law making it possible, firstly, to determine in advance the kinds of expenditure which fell within the scope of “unlawful expenditure” and, secondly, to anticipate the circumstances in which the Constitutional Court in response to an identified financial irregularity would have recourse to the making of a confiscation order rather than issuing a warning.
The Court agreed with the applicant party. The interference had not been “prescribed by law” and Article 11 of the Convention had thereby been breached. The judgment is noteworthy for a number of reasons.
In the first place, the Court observed that requiring political parties to subject their finances to official inspection does not of itself raise an issue under Article 11. Such requirement serves the goals of transparency and accountability, thus ensuring public confidence in the political process. Member States enjoy a relatively wide margin of appreciation when it comes to the supervision of the finances of political parties and the choice of sanctions to be imposed in the event of the discovery of irregular financial transactions.
Secondly, the Court noted that the confiscation orders obliged the applicant party to curtail a significant number of its political activities, including at local branch level. There had therefore been an interference with its right to freedom of association, political parties being a form of association essential to the proper functioning of democracy.
Thirdly, before examining compliance with the “prescribed by law” component of Article 11, the Court underscored that the financial inspection of political parties should never be used as a political tool to exercise political control over them, especially on the pretext that the political party (like the applicant party) is publicly financed. It continued (paragraph 88 of the judgment):
“In order to prevent the abuse of the financial-inspection mechanism for political purposes, a high standard of ‘foreseeability’ must be applied with regard to laws that govern the inspection of the finances of political parties, in terms of both the specific requirements imposed and the sanctions that the breach of those requirements entails.”
Fourthly, the Court returned to this issue in its concluding remarks on the case. It accepted that the broad spectrum of activities undertaken by political parties in modern societies made it difficult to provide for comprehensive criteria to determine those activities which may be considered to be in line with the objectives of a political party and which relate genuinely to party work. However, in paragraph 106 of the judgment it stressed that, having regard to the important role played by political parties in democratic societies
“any legal regulations which may have the effect of interfering with their freedom of association, such as the inspection of their expenditure, must be couched in terms that provide a reasonable indication as to how those provisions will be interpreted and applied”.
On the facts of the applicant party’s case, the Court found that the relevant legal provisions in force at the time lacked precision as regards the scope of the notion of unlawful expenditure. The decisions of the Constitutional Court had failed to bring clarity to the matter, resulting in an inconsistent and unpredictable interpretation and application of the applicable law to the detriment of the applicant party’s need to be able to regulate its expenditure in order to avoid falling foul of the law. The lack of foreseeability was also compounded by the absence of guidance on whether and when an item of unlawful expenditure would be sanctioned by means of a warning or a confiscation order.
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Geotech Kancev Gmbh v. Germany[250] concerned the alleged breach of the applicant company’s right not to be forced to join an association (negative right to freedom of association).
The applicant company was engaged in the building industry. It objected to having to pay additional contributions to the Social Welfare Fund established in that sector. Such obligation was based on the fact that a collective agreement concluded between the relevant employers’ associations and the trade union was declared by the Federal Ministry for Labour and Social Affairs to be of general application in the building industry, which meant that all employers in the industry, even if they were not members of an employer’s association, were required to make additional contributions to the Fund. The applicant company is not a member of an employers’ association, and therefore did not take part in the negotiation of the collective agreement, and does not wish to join one.
In the Convention proceedings, the applicant company complained that the obligation to participate financially in the Fund violated its right to freedom of association, essentially because, not being a member of an employers’ association, it had no say in the running of the Fund and no means to protect its own interests. In its view, these factors put it under pressure to join an employers’ association so as to enable it to defend its interests.
The Court examined the applicant company’s complaint from the standpoint of the negative aspect of the right to freedom of association, namely the right not to be forced to join an association. Its inquiry was directed at establishing whether the circumstances of the case were such as to constitute an interference with the applicant company’s Article 11 right and in particular whether the alleged pressure to become a member of an employers’ association could be said to have struck at the very substance of that right.
The Court ruled against the applicant company. The judgment is of interest in that it was required to distinguish the facts of the applicant company’s case from those in previous cases in which it found that an obligation to contribute financially to an association can resemble an important feature in common with that of joining an association and can constitute an interference with the negative aspect of the right to freedom of association (see, in particular, Vörður Ólafsson v. Iceland[251]). The Court highlighted the following points which undermined the applicant company’s view that the scheme was tantamount to compulsory membership of an employers’ association. In so doing it had close regard to the social purpose underpinning the creation of the scheme.
In the first place, the applicant company’s contributions to the Fund could only be used to implement and administer the Fund and to pay out benefits to employees in the building industry. For that reason, the contributions which the applicant company was required to pay could not be considered to be a membership contribution to an employers’ association.
Secondly, all contributing companies, whether members of an employers’ association or not, received full information about the use to which their contributions were put. There was a high level of transparency surrounding the operation of the Fund.
Thirdly, unlike in the case of Vörður Ólafsson, there was a significant degree of involvement in and control of the scheme by public authorities.
In view of the above considerations, the Court concluded that any de facto incentive for the applicant company to join an employers’ association was too remote to strike at the very substance of its Article 11 right.
The judgment confirms the established case-law regarding the negative right to freedom of association and the importance of conducting a fact-specific inquiry into whether or not the facts of a particular case disclose a violation of Article 11 in cases of alleged compulsion to join an association.
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The Unite the Union v. the United Kingdom[252] decision examined the question whether a State has a positive obligation to provide for a mandatory system of collective bargaining.
The applicant trade union represented around 18,000 employees in the agricultural sector. Following a series of consultations with interested parties, including the applicant trade union, the British Government succeeded in having adopted new legal provisions abolishing the Agricultural Wages Board for England and Wales, a statutory body which for many years had set minimum wages and conditions in the agricultural sector. The Board comprised among its members representatives of employers and employees, the latter being nominated most recently by the applicant trade union.
In the Convention proceedings, the applicant trade union argued that the abolition of the Board was contrary to Article 11 of the Convention in that it infringed its right to engage in collective bargaining in the interests of its members, that being an essential element of the right to form and join a trade union. The Court found the complaint to be manifestly ill-founded. The decision is of interest for the following reasons.
In the first place, the Court noted that the abolition of the Board did not prevent the applicant trade union from engaging in collective bargaining. Employers and trade unions were not prevented from entering into voluntary collective agreements and the enforceability of such agreements was provided for in domestic law. For that reason the abolition of the Board could not be seen as an interference with the applicant trade union’s Article 11 rights.
Secondly, the Government could not be said to have failed to comply with any possible positive obligation which may be derived from Article 11 to have in place a mandatory statutory forum for collective bargaining in the agricultural sector. The respondent State enjoyed a wide margin of appreciation in determining whether a fair balance had been struck between the protection of the public interest in the abolition of the Board and the applicant trade union’s competing rights under Article 11 of the Convention. It is of interest that the Court had regard to the European Social Charter, the Charter of Fundamental Rights of the European Union and several ILO Conventions concerning the right to bargain collectively, particularly in the agricultural sector, in order to show that there did not exist an international consensus in favour of the applicant trade union’s position.
Thirdly, the Court pointed out the extent of the consultation on the Government’s proposal to abolish the Board as well as its assessment of the impact, including financial, of the abolition on workers in the agricultural sector. It is noteworthy that the Court found that the fact that the government had considered the human-rights implications of the proposal, including the extent of their positive obligations in the area of collective bargaining, was “a factor which carries some weight for [its] assessment as to the fair balance to be struck between the competing interests at stake in the light of the principle of subsidiarity”.
Fourthly, in examining compliance with the fair-balance requirement, the Court reiterated that the applicant trade union was not prevented from negotiating voluntary collective and legally enforceable agreements. Even accepting its submission that voluntary collective bargaining in the agricultural sector was virtually non-existent and impractical, this was not, in the Court’s view, sufficient to lead to the conclusion that a mandatory mechanism should be recognised as a positive obligation.
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246. See also under Article 10 above, Novikova and Others v. Russia, nos. 25501/07 and 57569/11, 26 April 2011.
247. Frumkin v. Russia, no. 74568/12, ECHR 2016.
248. Gülcü v. Turkey, no. 17526/10, 19 January 2016.
249. Cumhuriyet Halk Partisi v. Turkey, no. 19920/13, ECHR 2016.
250. Geotech Kancev GmbH v. Germany, no. 23646/09, 2 June 2016.
251. Vörður Ólafsson v. Iceland, no. 20161/06, § 48, ECHR 2010.
252. Unite the Union v. the United Kingdom (dec.), no. 65397/13, 3 May 2016.
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