Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Contracts Expression
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The European Court of Human Rights (“ECtHR”) found no violation of the right to peaceful demonstration and the applications were dismissed as manifestly ill-founded. The ECtHR considered that a short time of detention by the police was necessary in a democratic society, as both applicants had been reasonably suspected of coercion at the relevant time and the impugned police measures were proportionate to the legitimate aim of the prosecution of offenses, although later the criminal proceedings against them have been discontinued on grounds of insignificance.
The first applicant, Mr. Donat, was deputy mayor of a town called Zernien and a member of the Lüchow-Dannenberg county council. The second applicant, Ms. Fassnacht-Albers, and her husband, were civilians. They were traveling in their respective cars on a federal road when they encountered a traffic jam created by a blockade at some upcoming crossroads. The first applicant exited his vehicle and approached the blockade with the intent to inform himself of its purpose and, if necessary, mediate in his position as an elected public official. The second applicant left her vehicle and approached the blockade in order to inform herself of its purpose.
The police on the scene allowed the applicants to park their cars and approach the blockade. However, shortly after the applicants left their cars, more police arrived on the scene and grouped the applicants, along with 315 other persons present at the scene, into a police cordon. The police then informed the persons that they were suspected of committing a federal offense due to the substantial amount of time for which they had blocked the federal road. They informed the persons in the cordon that they needed to record their identities. This process took either 1 hour (according to the police report) or 2 hours (according to the applicants’ complaints).
After the applicants were released, they encountered considerable difficulty returning to their vehicles because they needed to cross a forested area that was not easy to traverse at night.
Both applicants lodged complaints claiming that, by detaining the applicants and forcing them to reveal their identities, the police had violated the applicants’ right to peaceful demonstration. The German courts disagreed and the applicants’ lodged the current complaint with the ECtHR, claiming violations of ECHR Article 5 (right to liberty and security of person), Article 10 (freedom of expression), and Article 11 (freedom of assembly).
The ECtHR dismissed the applicants’ complaint on all counts. As to the applicants’ claim that the German police had violated their Article 5 right to liberty, the Court considered that the right to liberty is violated in cases in which a true deprivation of liberty has occurred, rather than a temporary restriction on physical movement, as in the applicants’ case. In order to determine whether a temporary restriction on physical movement could amount to a deprivation of liberty, the Court considered whether the restriction was “necessary in a democratic society.” In the case at hand, the Court found that the police had not acted unreasonable in cordoning the applicants for one to two hours as part of police efforts to diffuse the blockade, which was disrupting the traffic flow on a public road. Accordingly, the Court found no violation of Article 5 ECHR.
As to the applicants’ claim that, by temporarily cordoning the applicants, the German police had violated their Article 11 right to assembly, and by doing so, had breached the applicants’ Article 10 freedom of expression, the Court first considered whether the demonstration was peaceful. The Court found no evidence of violent intention or purpose on the part of the protestors who participated in the blockade, and therefore agreed that the dissolution of the blockade and the cordoning of protestors violated the applicants’ freedom of assembly. Nevertheless, the Court found that the violation was justified, because the relatively insignificant time of detention was in compliance with local German law enacted with the legitimate social aim of maintaining peace and public order. The Court reiterated that the exceptions afforded as “necessary in a democratic society” imply that interference with an ECHR expression right correspond to a “pressing social need” and, in particular, that it is proportionate to the legitimate aim pursued. The Court found that all of those elements were met by the law and the police action in question in this case. Thus, the Court found no violation of Article 11 ECHR, and by extension, no violation of Article 10 ECHR.
For the reasons above, the ECtHR dismissed all of the applicants’ claims as “manifestly ill-founded” and upheld the decisions of the domestic courts.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ECtHR decision contracts expression by upholding a criminal statute that allows police to temporarily cordon protestors to collect their identification in a effort to dispel a blockade set up by said protestors. Although the Court found that, because the protestors had blocked a public road for several hours, the police action and statute in question “pursued a legitimate aim” and was “necessary in a democratic society,” the decision nevertheless contracts expression by legitimizing (if not expanding) police power to dispel protests and collect information on protestors themselves.
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.
This ECtHR decision puts ECHR State Parties on notice that criminal statutes authorizing the temporary cordoning and questioning of protestors can be legitimate, at least if the protestors are blocking a public road for an extended period of time.
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