Freedom of Association and Assembly / Protests
Nemtsov v. Russia
Closed Contracts Expression
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The Court of Appeal of England and Wales upheld a ruling requiring “Occupy Movement” protesters camping on land next to St. Paul’s Cathedral in London to vacate. Members of the “Occupy Movement” established a campsite consisting of between 150 to 200 tents on land that was predominantly owned by the City of London. After over two months of occupation, the High Court of England and Wales ruled that the relief sought by the City of London pursued a “pressing social need” and was proportionate to the aims of protecting the rights and freedom of others, protecting public health and public safety, and preventing disorder and crime. The Court of Appeal upheld this decision, finding that the judge of the High Court was entitled to rely on the evidence that he did, and that his judgment was a justified interference on the rights of the “Occupy Movement”.
This case analysis was contributed to by the Open Society Justice Initiative
The “Occupy Movement” was a worldwide protest movement concerned with issues such as social and economic inequality, climate change, and the excesses of capitalism. In October 2011, members of the “Occupy Movement” established a camp in the churchyard of St. Paul Cathedral, London. This was an important Cathedral that attracted many visitors and worshippers.
The camp consisted of between 150 and 200 tents which were used for purposes such as providing overnight accommodation, holding of meetings, providing first aid services, operating a library, and serving food and drinks. The majority of the land occupied by the camp was highway land owned by the City of London, but the camp also occupied some land that was property of the Church of England.
The City of London brought proceedings against the protesters before the High Court of England and Wales. On 18 January 2012, Justice Lindblom handed down the judgment of the High Court granting injunctive and declaratory relief against the protesters. In his judgment, Justice Lindblom considered the protesters’ rights under Articles 10 (freedom of expression) and 11 (freedom of assembly) of the European Convention on Human Rights and balanced them against (i) the City’s right to assert its property rights and to enforce compliance with statutes regarding public property; (ii) the right to freedom of religion of those working at the Cathedral and those wishing to visit it; (iii) the obstruction to pedestrian traffic and the public’s right of way; (iv) the detriment caused by the camp to the trade of surrounding local businesses; and (v) the general nuisance caused by the camp, including an increase in crime in the area.
After the balancing exercise, Justice Lindblom concluded that the City had convincingly established that there was a “pressing social need” not to permit the protest camp to continue where it was (or in the surrounding area), and that it would be proportionate to grant the relief sought. Thus the judge made the following:
“(1) orders for possession in respect of the two areas of land owned by the City at St Paul’s Churchyard and occupied by the defendants,
(2) an injunction requiring the defendants (a) to remove forthwith all tents in the area currently occupied by the Camp, (b) not to impede the City’s agents from removing such tents, and (c) not to erect tents on the other areas around the Cathedral the subject of the proceedings, and
(3) declarations that the City could remove tents from all those areas”. [Para. 20]
He also refused permission to appeal after which the defendants requested such permission from the Court of Appeal of England and Wales.
On 22 February 2012, the Court of Appeal of England and Wales (Court) delivered its judgment upholding the decision of the High Court.
The Court started its analysis by assessing whether the case engaged Articles 10 (right to freedom of expression) and 11 (right to freedom of assembly) of the European Convention on Human Rights (ECHR). After reviewing case law from the European Court of Human Rights and domestic courts, the Court concluded that the issue of maintaining the camp at St. Paul’s Cathedral engaged the defendants’ rights to freedom of expression and assembly contained in Articles 10 and 11 of the ECHR.
The Court then considered the arguments raised by the defendants in support of their position that Justice Lindblom had erred in not dismissing the City’s claim. Most of these arguments were quickly rejected by the Court. For instance, the Court dismissed the argument that Justice Lindblom should not have taken into account the increase in crime when reaching his decision. The Court concluded that there was evidence justifying Justice Lindblom’s conclusions, and that it was fanciful to suggest he should not have taken this factor into account. The Court also rejected the argument that Justice Lindblom should not have taken into account the interference with the rights of those who wished to worship at St. Paul’s Cathedral. The Court concluded that the judge was entitled to reach the conclusion he did on the basis of the evidence before him, including the 40% reduction in worshippers attending the Cathedral since the establishment of the camp.
In refusing permission to appeal, the Court also referred to the improbability that the camp would cease voluntarily within the months following its decision. The Court stated that there would have needed to have been a very clear commitment that the camp would be vacated in the very near future before there could have been any possibility of justifying the judge not making the relevant orders.
The Court then turned to the broader question of whether the judgment of Justice Lindblom was an unjustified and disproportionate interference with the ECHR rights of the defendants. This argument raised the issue of what limitations may be placed on the right of lawful assembly and protest on the highway. The Court agreed that the limitations that could be placed on this right would differ from case to case, but stated that the following factors would be relevant in an assessment of whether limitations are justified: “the extent to which the continuation of the protest would breach domestic law, the importance of the precise location to the protesters, the duration of the protest, the degree to which the protesters occupy the land, and the extent of the actual interference the protest causes to the rights of others, including the property rights of the owners of the land, and the rights of any members of the public.” [para. 39]
Next, the Court addressed the defendants’ argument that the importance of the issues of which the “Occupy Movement” was concerned was of considerable relevance. The Court acknowledged that it was appropriate to take into account the general character of the views at issue, stating that political and economic expression are at the top end of the scale of protection. However, the Court considered that this “cannot be a factor which trumps all others, and indeed it is unlikely to be a particularly weighty factor: otherwise judges would find themselves according greater protection to views which they think important, or with which they agree.” [Para. 41] The Court endorsed Justice Lindblom’s conclusions that the defendants were expressing views on important issues and that they strongly believed in those views. The Court concluded that any further analysis of those views and issues would have been unhelpful and inappropriate.
Continuing with its analysis on the question of whether the decision was disproportionate, the Court also noted that Justice Lindblom’s orders did not prevent the “Occupy Movement” from protesting somewhere else, and that there were many rights with which their camp was interfering adversely by its continued presence at St. Paul’s Cathedral. [Para. 42] The Court concluded that: “while the protesters’ Article 10 and 11 rights are undoubtedly engaged, it is very difficult to see how they could ever prevail against the will of the landowner, when they are continuously and exclusively occupying public land, breaching not just the owner’s property rights and certain statutory provisions, but significantly interfering with the public and [ECHR] rights of others, and causing other problems (connected with health, nuisance, and the like), particularly in circumstances where the occupation has already continued for months, and is likely to continue indefinitely.” [Para. 49]
Finally, the Court addressed the defendants’ argument that the High Court should have issued orders that were less intrusive on their rights. This argument was rejected because the defendants failed to present a proposal for a less restrictive solution, and the Court could also not envisage any measure which (i) would be workable in practice, (ii) would not give rise, at least to anything like the same degree, to the breaches of statutory provisions and other peoples’ rights as the current state of affairs, and (iii) would be less intrusive of the defendants’ ECHR rights as the orders made by Justice Lindblom.
In light of the above, the Court unanimously refused permission to appeal.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case contracts freedom of expression because, even though the Court acknowledged that the rights to freedom of expression and assembly entail a right to temporally occupy highways as a form of public protest, the Court recognized a very limited right to demonstrate in the form adopted by the “Occupy Movement” (i.e. occupying an area of land by setting up a campsite there to bring public attention to issues of public importance). In doing so, the Court attached significant weight to inter alia the City’s property rights, the importance of enforcing statutory law on public property, and the protection of the rights of others (including the right to freedom of religion).
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The Court directly expressed that it expected its judgment to serve as guidance for future first instance decisions.
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