Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
Closed Expands Expression
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The plaintiffs organized and participated in a legally sanctioned march to mark the International Day Against Homophobia. Counter-protesters attacked the plaintiffs and injured them, while the police remained largely inactive. Following the clash, only two of the attackers were prosecuted and received minimal fines. The plaintiffs complained that this inaction and lack of prosecution of the counter-demonstrators was a violation of their rights under Articles 11 (assembly) of the European Convention on Human Rights (ECHR).
The plaintiffs are a Georgian NGO and several persons who participated in a legally sanctioned march to commemorate the International Day Against Homophobia on May 17, 2012. On that day, two religious groups, the Orthodox Parents’ Union and the Saint King Vakhtang Gorgasali’s Brotherhood attempted to stop the plaintiffs and others from reaching the starting point of the march. The religious groups claimed that nobody was entitled to hold a Gay Pride Parade. The marchers explained that this was not a pride parade but an event to support the fight against homophobia and continued to walk. Some distance later, another group of counter-demonstrators made a human chain and encircled the marchers to prevent them from continuing to move.
The counter-demonstrators were verbally and physically aggressive. The police that were escorting the marchers distanced themselves from the altercation. The marchers called the police for additional help against the counter-demonstrators. However, 20-30 minutes later, the altercation escalated, with the counter demonstrators grabbing banners away from the marchers and physically attacking them. At that point, the police intervened by coming in between the two parties. One of the plaintiffs asked the police to be more active in protecting the demonstrators and the police responded by arresting him and bringing him to a police station without an explanation. Later, the police claimed to have done that to protect him from the counter-demonstrators.
The day after the march, the plaintiffs, along with a few others, filed several complaints against the two religious groups as well as the police’s inaction. After a criminal investigation, the Ministry of Interior replied that the police did not commit any violations during the march. As to the counter-demonstrators, two were arrested and fined EUR 45 for minor breach of public order. The plaintiff appealed, but to no result.
First, the Court determined that although the plaintiffs complained under Articles 10 and 11, Article 11 was more relevant, and thus there is no need to consider the case under Article 10.
On violations of Article 11 (freedom of assembly), the Court stressed that effective freedom of public assembly is not merely the State’s duty not to interfere, but also to act as the ultimate guarantor of the principles of “pluralism, tolerance and broadmindedness.”  Thus, although peaceful demonstrations may not be favorable to all segments of society, the demonstrators should expect the State to protect them from being subjected to the fear of physical violence. This State’s obligation is particularly important for minorities or persons holding unpopular views because they are more prone to victimization.
Based on the above standards, the Court ruled that the Georgian authorities received generous notice to ensure the safety of the plaintiffs, but failed to do so, hence Article 11 was violated.
 Para. 93 of the decision, http://www.civil.ge/files/files/2015/CaseOf%20IdentobaAnd%20Others%20v.%20Georgia.pdf.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision reiterated the State’s positive obligation to ensure that the freedom of assembly is protected, especially when vulnerable groups are concerned.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
“That positive [State] obligation is of particular importance for persons holding unpopular views or belonging to minorities, because they are more vulnerable to victimisation (see Bączkowski and Others v. Poland, no. 1543/06, § 64, 3 May 2007).
“[T]he prohibition of discrimination under Article 14 of the Convention duly covers questions related to sexual orientation and gender identity.”
“[The Court] has held that although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position.”
“The State must act as the ultimate guarantor of the principles of pluralism, tolerance and broadmindedness.”
Case significance refers to how influential the case is and how its significance changes over time.
The decision stresses the State’s need to actively protect freedom of public assembly, especially of minority groups such as LGBTI. The precedential value is that States cannot solely provide the right to assemble without ensuring that the right is fully enjoyed.
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