{"id":611,"date":"2019-04-07T20:48:18","date_gmt":"2019-04-07T20:48:18","guid":{"rendered":"https:\/\/laweuro.com\/?p=611"},"modified":"2019-04-07T21:45:02","modified_gmt":"2019-04-07T21:45:02","slug":"freedom-of-assembly-and-association-article-11-overview-of-the-case-law-of-the-echr-2018","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=611","title":{"rendered":"Freedom of assembly and association (Article\u00a011)"},"content":{"rendered":"

Overview of the Case-law of the ECHR 2018<\/em><\/p>\n

Freedom of assembly and association (Article\u00a011)<\/strong><\/p>\n

Freedom of peaceful assembly<\/strong><\/p>\n

In Navalnyy v. Russia[142], the applicant was a political activist, anti-corruption campaigner and popular blogger, as well as one of the most significant opposition figures in Russia. This case concerns seven occasions, between March 2012 and February 2014, when he was arrested, provisionally detained and convicted of administrative offences on account of his alleged participation in unauthorised but peaceful public gatherings. On the fifth occasion, the applicant was penalised when he left a stationary demonstration in a group of people. On the sixth occasion, he found himself in a group of activists in front of a courthouse because they had been denied entry to the court hearing.<\/p>\n

The Grand Chamber found violations of Articles\u00a05 and 6: his detention had been unjustified and arbitrary (Article\u00a05) and the findings in six of the seven proceedings were not based on an acceptable assessment of the facts (Article\u00a06). It also found a violation of Article\u00a011. The Grand Chamber found that the Article\u00a018 complaint required a separate examination and that it had been violated. Finally, indications on general measures to be adopted were provided under Article\u00a046 of the Convention.<\/p>\n

(i) Two points concerning the Court\u2019s approach to Article\u00a011 are worth noting.<\/p>\n

\u2013 The Grand Chamber examined separately the legitimate aim(s) pursued by the authorities. While it had serious doubts that any legitimate aim had been served by five of the arrests, it found a violation of Article 11 because the fifth and sixth arrests were not found to have pursued a legitimate aim. This case is therefore one of those rare cases[143] where the absence of a legitimate aim constituted, of itself, a violation of the Convention.<\/p>\n

\u2013 The remaining five arrests were found by the Grand Chamber to be disproportionate restrictions of the applicant\u2019s right to freedom of assembly under Article 11 of the Convention. This violation was based on familiar reasoning concerning a lack of tolerance by the authorities of unauthorised but peaceful demonstrations[144]. However, the Grand Chamber also went on to broaden the focus of its findings. It considered that these five episodes were indicative of a persistent failure by the authorities to show the tolerance required, despite a clear line of Court judgments against Russia setting out those requirements, including judgments delivered before the present arrests. This lack of tolerance was considered to constitute another dimension of the previously identified structural inadequacy[145] of the regulatory framework which failed to provide effective legal safeguards against arbitrary inter\u00adferences with the right to freedom of assembly. That domestic law failed to provide effective safeguards was further exemplified by the finding in the present case that no legitimate aim had been pursued by two of the arrests.<\/p>\n

(ii) In addition, this is the first time the Court has found a violation of Article\u00a018 in conjunction with an Article (Article\u00a011) other than Article\u00a05 of the Convention. This combination is possible since Article\u00a011 permits restrictions of the kind to which Article\u00a018 refers.<\/p>\n

(iii) Finally, and of particular relevance to the respondent State, the Grand Chamber indicated under Article\u00a046 certain general measures to be taken. It drew on a pattern of similar violations cited and established in Lashmankin and Others, on the violation of Article\u00a011 in the present case (linked as it was to the structural inadequacy of the regulatory framework), as well as on the findings under Article\u00a018 of the Convention. It called for the adoption by the respondent State of, inter alia, appropriate legislative and\/or other general measures to secure a domestic mechanism requiring the competent authorities to have due regard to, notably, the fundamental character of the freedom of peaceful assembly and to show appropriate tolerance towards unauthorised but peaceful gatherings which did not cause disruption to ordinary life going beyond the level of minor disturbance.<\/p>\n

_____________________<\/p>\n

142. Navalnyy v. Russia [GC], nos.\u00a029580\/12 and 4 others, 15\u00a0November 2018. See also under Article\u00a018 (Restrictions not prescribed by the Convention) below.<\/p>\n

143. As cited in Merabishvili v. Georgia [GC], no.\u00a072508\/13, 28\u00a0November 2017; Khuzhin and Others v. Russia, no.\u00a013470\/02, 23\u00a0October 2008; Nolan and K. v. Russia, no.\u00a02512\/04, 12\u00a0February 2009; P. and S. v. Poland, no.\u00a057375\/08, 30\u00a0October 2012; and Karajanov v. the former Yugoslav Republic of Macedonia, no.\u00a02229\/15, 6\u00a0April 2017.<\/p>\n

144. For example, Malofeyeva v. Russia, no.\u00a036673\/04, 30\u00a0May 2013; Kasparov and Others v. Russia, no.\u00a021613\/07, 3\u00a0October 2013; Navalnyy and Yashin v. Russia, no.\u00a076204\/11, 4\u00a0December 2014; Novikova and Others v. Russia, nos. 25501\/07 and 4 others, 26\u00a0April 2016; and Lashmankin and Others v. Russia, nos.\u00a057818\/09 and 14\u00a0others, 7\u00a0February 2017.<\/p>\n

145. See, in particular, Lashmankin and Others, cited above, \u00a7\u00a7\u00a0471-77.<\/p>\n

Table of Contents<\/a><\/p>\n

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Overview of the Case-law of the ECHR 2018 Freedom of assembly and association (Article\u00a011) Freedom of peaceful assembly In Navalnyy v. Russia[142], the applicant was a political activist, anti-corruption campaigner and popular blogger, as well as one of the most…<\/p>\n

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