Information Note on the Court’s case-law 262
Judgment 3.5.2022 [Section IV]
Freedom of expression
Activist fined for a short and peaceful gathering, without prior notice, with three other persons, who handcuffed themselves to a government car park barrier, in protest against a mining project: violation
Facts – The applicant, a known activist involved in various civic actions, was fined with three other persons for handcuffing themselves to a car park barrier blocking access to the government’s headquarters and holding up signs, without having given the required prior-notification, in protest of acontroversial mining project. The applicant unsuccessfully challenged the fine before the domestic courts.
Article 10 in light of Article 11:
(a) Applicability – Both Articles 10 and 11 were applicable. In particular, in the circumstances of the case the Court could not accept that the penalty imposed on the applicant could be dissociated from the views expressed by him through his actions or endorse the Government’s argument that the applicant had been punished merely for committing acts affecting public order. In this connection, the Court noted that it had consistently found Article 10 to be applicable to views or opinions expressed through conduct. In so far as Article 11 was concerned, it transpired from the evidence that the applicant’s conduct had not amounted to violence or incitement to it, no one had been injured during the event in question and he had not been held liable for any damage.
(b) Scope of the Court’s assessment – Given that the thrust of the applicant’s complaint was that he had been punished for protesting, together with other participants in the non-violent direct action, against the government’s policies, the Court was persuaded that the event had constituted predominantly an expression. This was all the more so since it had involved only four persons and lasted a very short time. Moreover, as it had been the result of a rather spontaneous decision and lacked any prior advertisement, it was difficult to conceive that such an event could have generated the presence of further participants or the gathering of a significant crowd warranting specific measures on the part of the authorities. The Court therefore found it appropriate to examine the case under Article 10, interpreted in the light of Article 11.
(c) Merits– The applicant’s sanctioning had constituted an interference with his right to freedom of expression which had a legal basis in domestic law. The Court also accepted that the sanction imposed could have been aimed at the prevention of disorder and at the protection of the rights and freedoms of others; hence it proceeded on the assumption that it had pursued those legitimate aims.
As to whether the interference had been necessary in a democratic society, the Court observed that the applicant and the other participants in the event had wished to draw the attention of their fellow citizens and public officials to their disapproval of the government’s policies concerning the mining project. This was a topic of public interest and contributed to the ongoing debate in society about the impact of this project and the exercise of governmental and political powers green-lighting it. In this connection, the Court reiterated that there was little scope under Article 10 § 2 for restrictions on political speech or debates on questions of public interest and very strong reasons were required for justifying such restrictions.
In the present case, the protest action had taken place in a square freely open to the public. It had been terminated swiftly by the law-enforcement officials and the applicant, with the other participants, had been taken to a police station where they were fined after having been given hardly any time to express their views. The domestic courts seemed to have dealt with the situation arising from the applicant’s protest as a matter falling primarily within the ambit of the regulations concerning public events requiring prior notification and the exercise of one’s right to freedom of peaceful assembly. The Court thus referred to the principles established in its case-law in the context of Article 11 concerning, in particular, the rules governing public assemblies such as the system of prior notification and the degree of tolerance that had to be shown by public authorities towards peaceful gatherings.
When dismissing the applicant’s challenge against the police report and the fine imposed on him, the national courts had not assessed the level of disturbance his actions had caused, if any. They had not sought to strike a balance between the requirements of the purposes listed in Article 11 § 2 on the one hand, and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places, on the other, giving the preponderant weight to the formal unlawfulness of the event in question. The national courts’ assertion of a prior notification of the event staged by the applicant being required had not been accompanied by any apparent consideration of the fact whether, given the number of participants, such a notification would have served the purpose of enabling the authorities to take necessary measures in order to guarantee the smooth conduct of the event. Further, the application of that rule to expressions– rather than only to assemblies – would create a prior restraint which was incompatible with the free communication of ideas and might undermine freedom of expression.
The authorities’ impugned actions had disregarded the emphasis repeatedly placed by the Court on the fact that the enforcement of rules governing public assemblies should not become an end in itself. The absence of prior notification and the ensuing “unlawfulness” of the event, which the authorities considered to be an assembly, did not give carte blanche to the authorities; the domestic authorities’ reaction to a public event remained restricted by the proportionality and necessity requirements of Article 11.
Finally, although the fine imposed had been the minimum statutory amount envisaged for the impugned contravention and the applicant had not argued or submitted evidence that paying the fine had been beyond his financial means, the imposition of a sanction, administrative or otherwise, however lenient, on the author of an expression which qualified as political could have an undesirable chilling effect on public speech.
In the light of the above, the decision to restrict the applicant’s freedom of expression had not been supported by reasons which had been relevant and sufficient for the purposes of the test of “necessity” under Article 10 § 2. The interference had thus been not necessary in a democratic society within the meaning of Article 10.
Conclusion: violation (unanimously)
Article 41: EUR 117 in respect of pecuniary damage corresponding to the amount of the fine imposed on the applicant and EUR 5,000 in respect of non-pecuniary damage.
(See also Tatár and Fáber v. Hungary, 26005/08 and 26160/08, 12 June 2012, Legal Summary; Primov and Others v. Russia, 17391/06, 12 June 2014, Legal Summary; Kudrevičius and Others v. Lithuania [GC], 37553/05, 15 October 2015, Legal Summary; Novikova and Others v. Russia, 25501/07 et al., 26 April 2016, Legal Summary; Obote v. Russia, 58954/09, 19 November 2019)