Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The European Court of Human Rights found that Russia had violated the right to freedom of expression of Miss Naylya Razinovna Ibragimova, who had protested the conviction of members of the political activist group Pussy Riot in August 2012. The plaintiff had stood alone on a corner of a public square holding a sign in support of Pussy Riot members and wore a balaclava, following the famous style of the group she wanted to support. She was later fined for violating the Public Events Act, that prohibits hiding one’s face in public. The Court considered that the national courts had failed to adequately consider the plaintiff’s freedom of expression rights, the symbolic nature of the balaclava use (in the context of her protest) and her lack of intention of hiding her identity from authorities.
On August 17, 2012, Naylya Razinovna Ibragimova launched a solo demonstration in the Five Corners Square of Murmansk in order to protest the conviction of Pussy Riot punk group members. Following the famous act of the group, miss Ibragimova wore a green balaclava and held a sign in support of Pussy Riot. She was not arrested at the time, even though police were in the vicinity. Soon after, she was indicted with hiding her face during a public event, which was prohibited by section 6(4) of the Public Events Act. On November 2012, she was found guilty and was fined. She tried to argue that she did not hide her face, and that—-in fact—-she had revealed her identity to reporters covering her one-woman protest. The Oktyabrskiy District Court of Murmansk dismissed this defense, even though two witnesses had confirmed that (a) the balaclava was worn in clear support of the balaclava-wearing Pussy Riot punk group and that (b) the applicant had indeed revealed her identity to reporters at the time.
Miss Ibragimova questioned her conviction in front of the European Court of Human Rights.
The decision by the European Court was laid down by a Chamber formed by Georges Ravarani acting as President and judges Georgios A. Serghides, María Elósegui, Darian Pavli, Anja Seibert-Fohr, Peeter Roosma and Mikhail Lobov (who partly dissented).
The decision began by recalling a case solved by the Constitutional Court of the Russian Federation, in which it had analyzed the Public Events Act, and—-in particular—-the prohibition of hiding one’s face during a public event or demonstration. The Constitutional Court held that “the prohibition on participants hiding their faces during public events—-including by use of masks, camouflage or other items specifically designed to hinder identification—-applied to all types of public events, regardless of their location, the number of participants, the aim pursued, the issues discussed or opinions expressed…” [para. 17]. For the Court, such a prohibition “had a clear preventive and deterrent effect on the conduct of participants in public events, as it prevented them from thinking that they could commit unlawful actions and go unpunished. It also helped to ensure that liability for a breach of the statutory procedure for holding a public event was not avoided” [para. 17]. However, the European Court also highlighted that the Constitutional Court had expressly considered that some elements of visual expression could be used by protestors on their faces, such as drawings or stickers [para. 18].
This, it turned out, was hugely important for the European Court assessment of the case. The decision started by finding that an interference with the applicant’s freedom of expression right guaranteed by Article 10 of the European Convention existed and that it was prescribed by law [par. 27]. When considering whether the law forbidding demonstrators from hiding their faces during public events pursued a legitimate, public-order related aim the Court made two points. On the one hand, the Court highlighted how the State had invoked the previously mentioned Constitutional Court decision regarding the Public Events Act. On the other, the Court noted the “indisputably peaceful nature of the solo demonstration staged by the applicant and the absence of any real risks of disorder in the circumstances” [para. 31]. This led the groundwork for its subsequent finding regarding the lack of necessity of the conviction.
The Court recalled that national authorities must provide “relevant and sufficient” reasons for their actions, to be judged within the Court’s margin of appreciation doctrine [para. 33]. The judges found that the applicant’s right to exercise her freedom of expression was not “adequately taken into consideration during the examination of the administrative-offence charges against her. Indeed, her arguments, concerning, in particular, the symbolic meaning of her use of the colourful balaclava did not receive any assessment by the courts” [para. 33]. The Court also reiterated its finding regarding the peaceful nature of the protest [para. 34]. And considered relevant that the national courts that had intervened in the case had failed to explore “in a meaningful manner whether there had been any intent or conduct preventing the applicant’s identification during her demonstration—-or, in terms of domestic law, whether her balaclava was ‘specifically designed’ to hinder identification” [para. 36]. The automatic application of what the Court considered was a “blanket ban” on covering one’s face [para. 37] left no room for the nuances introduced by the Constitutional Court four years after the event of this case. For that reason, the Court found that the national courts conviction of Miss Ibramigova violated her freedom of expression as guaranteed by Article 10 of the European Convention on Human Rights.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression, because it protects peaceful demonstrations, especially when protestors can be harassed or prosecuted based on laws that are interpreted too broadly and automatically.
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