Freedom of Association and Assembly / Protests, Public Order, Political Expression
Şahin v. Turkey
Closed Mixed Outcome
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The Constitutional Court of Colombia held that the criminal laws against the “obstruction of public roads that affect the public order” and the “disruption of collective or official public transportation services” during public protests are constitutional. A citizen challenged the unconstitutionality of the crimes, arguing that the drafting of the provisions was ambiguous, which violated the principle of legality and allowed the criminalization of public demonstrations. The Court found that the provision preventing the “obstruction of public roads that affect the public order,” does not violate the principle of strict legality because the potential consequences of a violation were predictable based on the text, the defendant could challenge the provision, and the meaning and definition of the conduct it intends to prevent or encourage was sufficiently clear. Furthermore, the Court found that the required authorization of protests by the competent authorities should be understood as the result of an advance notice that does not intend to demand authorizations for exercising a fundamental right but rather “is intended to inform the authorities so they can adopt the measures that are necessary to facilitate the exercise of the right without significantly hindering the normal development of the community’s activities.”
A citizen brought a public action against the unconstitutionality of the crimes of “obstruction of public roads that affect the public order” and the “disruption of collective or official public transportation services” during public demonstrations. The challenged provisions read as follows:
Article 353A. Obstruction of public roads that affect the public order. Whoever by illicit means, incites, directs, restricts or provides the means to temporarily or permanently, selectively or generally obstruct transportation routes or infrastructure in ways that are harmful to human life, public health, food security, the environment or the right to work, shall incur in a prison sentence of twenty-four (24) to forty-eight months (48) and a fine of thirteen (13) to seventy-five (75) times the current legal minimum monthly wage, and the loss of the inability of rights and public functions for the same period of time as the prison sentence.
Protests conducted with the authorization of the competent authorities within the framework established in article 37 of the Constitution are excluded from this article.
Article 353. Disruption of collective or official public transportation services. Whoever prevents the circulation of or causes damage to a ship, aircraft, vehicle or other means of motor transportation intended for public, collective or official transportation, shall incur in a prison sentence of four (4) to eight (8) years and a fine of thirteen point thirty-three (13.33) to seventy five (75) times the current legal minimum monthly wage.
The citizen argued the drafting of the provisions was ambiguous which, in his opinion, allowed for the criminalization of public demonstrations. For the plaintiff the right to protest is part of the right to freedom of expression, which is disproportionately restricted by the criminalization of the contested conducts. The plaintiff indicated that “the requirement of authorization from the competent authorities provided for in the paragraph of Article 44 … implies that the authority has the discretionary power to allow or block the exercise of a fundamental right” [p. 9], which violates the Constitution.
The Court decided to declare the contested provisions were constitutional for it considered that it was possible to determine the content of the prohibition. Furthermore, it stated that the expression “with the authorization of the competent authorities” contained in the paragraph of Article 353A should be understood as an advance notice and not the attribution of powers for the police authorities to restrict the right to protest.
The Court had to decide whether the crimes of “obstruction of public roads that affect the public order” and “disruption of collective or official public transportation services”, were contrary to the Constitution because they disproportionately limited the right to protest.
The Court began its analysis by indicating that the legislator has a broad margin of appreciation to interpret the criminal policy of the State; this is the branch of the government that has the authority to define the crimes and sanctions appropriate for perpetrators. However, for the Court, “since crimes are an extreme mechanism to protect rights, when defining them, the legislator’s margin of appreciation is subject to the material contents of constitutional rights as well as the international human rights treaties and conventions ratified by Colombia” [p. 15].
The legislator is subject to limits when defining a criminal offense, one of them is the principle of strict legality, which implies “(i) that the definition of crimes is an exclusive power of the legislator (some matters can only be regulated by the legislator, or the principle of reserva de ley, in a material sense) and that (ii) it is mandatory to respect the principle of legality: nullum crimen, nulla poena, sine lege praevia, scripta et certa. Thus, the legislator not only has the duty to define punishable conduct in a clear, precise and unequivocal manner, but also to respect the principle of non-retroactivity of criminal law (except favorability)” [p. 16].
In that regard, the Court indicated that its jurisprudence “has been particularly careful when examining criminal laws aimed at punishing abuses in the exercise of the freedoms of speech, press, and assembly, which are considered essential for democracy and exercising control of power. Nevertheless, the protection of these freedoms does not prevent the repression of violence precisely because to resort to arbitrariness and the illegitimate use of force as a mechanism for asserting reasons or as a method for exercising these freedoms, is contrary to the democratic order, to peaceful coexistence, and to the respect and guarantee of all constitutional rights” [p. 23 and 24].
However, regarding the right to protest, the Court considered that it is a manifestation of freedom of expression, and therefore it can only be restricted legitimately through acts of parliament. In this sense, “within a pluralistic legal regime that privileges democratic participation and also guarantees the exercise of other constitutional rights such as freedom of movement (article 24, Political Constitution) and the rights of association (article 38, Political Constitution) and participation in public affairs (articles 2 and 40, Political Constitution), protests have the democratic function of drawing the attention of authorities and public opinion to a specific issue and to the needs of certain sectors, generally a minority, so they will be taken into account by the authorities” [p. 25].
The Court considered that “the Political Constitution guarantees the right to publicly assemble and to demonstrate both in a static (meeting) and a dynamic (mobilization) dimension, individually and collectively, and without any discrimination, for this is what is derived from the expression ‘all of the people.’ All this, without any other condition apart from being peaceful, that is, without violence, weapons or serious public order disturbances … Thus, even while recognizing the tension between exercising the right of assembly and public and peaceful manifestation and maintaining public order, the legislator cannot exceed the principles of reasonableness and proportionality when it uses its margin of appreciations or establishes a restriction whose vagueness leads to the frustration of this right” [p. 25].
The Court placed special emphasis on the requirement that protests be peaceful, stating, “the Constitution explicitly rejects the use of violence within the framework of the rule of law. When there are suitable instruments to express disagreement, such as the opposition statute, mandate revocation, the principle of the people’s sovereignty, constitutionality control, actions to enforce constitutional rights (tutela actions), enforcement actions and class actions, or peaceful demonstrations, the potential arguments for legitimizing armed confrontation or violent attitudes of resistance lose their rationale” [p. 27].
Regarding the challenged provisions, the Court considered that all the stipulations of the Penal Code are formulated in “natural language” which means that “all directives expressed [in such language], without exception, not only have frequent problems with semantic, syntactic or pragmatic ambiguity, but it is even possible to assert that all of these stipulations are composed of vague words. Therefore the strict legality tests for criminal offenses cannot be limited to a quality control exercise of the language used by the legislator” [p. 36].
Hence, a criminal law’s lack of precision can be overcome when three requirements are met: “[i] if the result of a reasonable interpretation is a criminal provision that guarantees to its recipients an admissible degree of predictability regarding the legal consequences of their actions (Political Constitution Article 2). [ii] … it is overcome if it also guarantees the right to defense (Political Constitution Article 29); that is, if a possible indictment or accusation for having incurred in the conduct described in the provision can be refuted in a case … [iii] if, additionally, the meaning of the precept is so clear, that it is possible to define the conduct that it intends to prevent or encourage to protect the legal interest (Political Constitution Article 2)]” [p. 37].
Thus, the formulation of the crime of “obstruction of public roads that affect the public order,” “does not violate the principle of strict legality. Although prima facie the formulation approved by the criminal legislator could give rise to certain discussions about its application to a specific case, this alone does not mean the provision is unconstitutional. If one takes the text of the disputed law, and it is reasonably interpreted within the appropriate context and in accordance with acceptable legal methods, the result is a sufficiently precise and clear provision” [p. 40].
In addition, the Court found the provision did not disproportionately limit the right to protest because in order to commit the crime it is necessary that the controlling verbs—to incite, direct, restrict or provide the means—be executed through “illicit means,” and that the subjective element be present, that is, that it was done to “temporarily or permanently, selectively or generally obstruct transportation routes or infrastructure,” and that the conduct does harm to “human life, public health, food security, the environment or the right to work.”
With respect to the paragraph contained in the above criminal provision that excludes protesters that have “the authorization of the competent authorities,” the Court considered that “the contested statute must be interpreted according to the Constitution (Political Constitution Article 4). That is, where the criminal provision speaks of ‘authorization,’ it could not be understood that the officials have the authority to restrict the right of assembly, since that interpretation would be unconstitutional … This authorization should be understood as the result of an advance notice that does not intend to demand authorizations for exercising a fundamental right but rather ‘is intended to inform the authorities so they can adopt the measures that are necessary to facilitate the exercise of the right without significantly hindering the normal development of the community’s activities’” [p. 42] [emphasis in original].
Finally, with respect to the crime of “disruption of collective or official public transportation services,” the legislator revised the definition of the crime by delimiting “the scope of the criminal provision; it described the conduct so that an individual only commits the crime when he prevents traffic—viewed as a collective matter—, not when he impedes the operation of an individual vehicle, because only the disruption of traffic which affects public security and poses a concrete risk to the individual rights and property of the members of the community” [p. 45]
On these grounds, the Court held that the provisions that were challenged are constitutional.
Judge Alexei Julio Estrada wrote a dissent as he considered that the crime of “obstruction of public roads that affect the public order” violates the principle of strict legality because its formulation is ambiguous and indeterminate.
Judge Jorge Ivan Palacio also wrote a dissenting opinion. In his view, “the provisions reviewed by the Court should have been declared unconstitutional for broadly and unjustifiably criminalizing the right to protest, and, therefore, ignoring the democratic and participatory nature of the Political Constitution and violating the most elementary scope of the freedoms of expression and thought, public demonstration, assembly, association and the development, exercise and control of political power” [p. 52].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling has a mixed result because although it indicates both that the criminal provision is clear enough to meet the strict legality standard that is required of criminal statutes and that it cannot be understood that the police authorities have powers to restrict the right to protest though the advance notice required of protestors—which is in accordance with international standards—, the Court neglected to apply a strict proportionality test (three part test) to verify that this restriction to freedom of protest is not excessively limited by the creation of criminal statutes, especially considering that criminal law is the most restrictive legal tool in terms of the exercise of fundamental rights.
The decision had significant practical impact in Colombia. The introduction and amendment of the challenged criminal provisions was discussed at a time when several peasant-farmer organizations had carried out different demonstrations and strikes in their professional capacity. This caused the blockage of several of the access routes to the country’s major cities and a considerable increase in the price of food. After the criminal provisions were declared constitutional, the Office of the Attorney General of the Nation announced during one of the peasant-farmer protests that it would prosecute all those who participated in blocking public roads. However, despite the warning, the protests continued and did not come to an end until an agreement was reached with the government.
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