Content Regulation / Censorship, Hate Speech, Public Order
Norwood v. United Kingdom
Closed Mixed Outcome
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During a controversy between the government of Lithuania and the agricultural sector, a group of farmers gathered to protest against the lack of adequate measures to protect their interests. The farmers went on to block three major highways, causing the stoppage of traffic. Upon the conclusion of the demonstrations, the government arrested and convicted several farmers directly involved in the demonstrations for breaching public order and rioting in violation of Article 283(1) of the Criminal Code.
The convicted farmers filed an application in the European Court of Human Rights, alleging that their criminal convictions interfered with their right to freedom of expression and freedom of assembly guaranteed under Articles 10 and 11 of the European Convention on Human Rights. The Grand Chamber of the Court ruled that the protesters’ criminal convictions did not violate their right to freedom of peaceful assembly as such interference satisfied the requirement of being necessary in a democratic society. It found that domestic authorities of Lithuania did not overstep the limits of their margin of appreciation by holding the protesters criminally liable for intentionally disrupting lawful activities of others through roadblocks on major highways, considered by the Court as a “reprehensible act.”
Arūnas Kudrevičius, Bronius Markauskas, Artūras Pilota, Kęstutis Miliauskas, and Virginijus Mykolaitis (applicants) were part of a group of farmers who participated in public demonstrations regarding controversies between the government of Lithuania and the agricultural sector. In May 2003, the Chamber of Agriculture, an organization representing the interests of farmers, organized peaceful demonstrations in order to seek adequate legal regulations for the agricultural industry. The demonstrations were to take place on three different locations next to major highways of the country.
Three different municipalities affected by the demonstrations issued permits, allowing farmers to peacefully protest. However, during the demonstrations, farmers decided to block three major highways despite of not having authorization from the respective municipalities. The demonstrations ended after a series of successful negotiations with the government.
In October 2003, the applicants were accused of breaching public order pursuant to article 283(1) of the Criminal Code. The prosecutor stated that the applicants, by way of blockading the three major highways, breached the public order and incited rioting. In September 2004, the Kaunas City District Court found them guilty of both inciting riots and participating in them. On appeal before the Kaunas Regional Court, the farmers argued that roadblocks are accepted as a form of expression within the European Union and that they were entitled to demonstrate under Articles 10 and 11 of the European Convention on Human Rights.
The Regional Court confirmed the District Court’s verdict, reasoning that the rights to freedom of expression and assembly are not absolute and are subject to reasonable limitations in order to protect and maintain the legitimate interest of public order. In October 2005, the Supreme Court of Lithuania upheld the decision.
The Chamber of the European Court of Human Rights found the criminal convictions in violation of the right to peaceful assembly guaranteed under Article 11 of the Convention. Subsequently, the case was referred to the Court’s Grand Chamber for reconsideration.
The Grand Chamber of delivered a unanimous decision.
The Grand Chamber first determined that the case should be examined under Article 11 of the Convention, even though the complaint separately invoked the protection of Article 10 on the right to freedom of expression. The Court was of the opinion that based on the circumstances of the case, Article 10 had to be regarded as “a lex generalis in relation to Article 11, which is a lex specialis.” [para. 85] It, however, emphasized that “Article 11 must also be considered in the light of Article 10, where the aim of the exercise of freedom of assembly is the expression of personal opinions.” [para. 86]
The government of Lithuania contended that the applicants were not convicted for exercising their rights to freedom of expression and peaceful assembly, but because of a serious breach of public order by organizing riots.
The first issue was whether the applicants were entitled to invoke the protections of Article 11 on the right to peaceful assembly. The Court noted that Article 11 “only protects the right to ‘peaceful assembly,’ a notion which does not cover a demonstration where the organisers and participants have violent intentions.” [para. 92] Applying to the present case, it found that the facts of the case fell within Article 11 mainly because the applicants’ convictions were based upon their breach of public order, rather than for their involvement in or incitement to violence. The Court also took into account the fact that the farmers were given permission by the government to peacefully demonstrate and express their political ideas, including their opposition against the government agricultural policies.
The second issue was whether the applicants’ right to freedom of assembly was interfered by the government of Lithuania. The Court reinstated that an interference within the meaning of Article 11 “does not need to amount to an outright ban, legal or de facto, but can consist in various other measures taken by the authorities,” including measures prior to and after a gathering that can result in a chilling effect on the persons who intent to participate. [para. 100] Here, while the farmers were permitted to demonstrate and the police did not disperse them after creating roadblocks, the subsequent criminal convictions as a result of their participation in the protests amounted to an interference with their right to freedom of peaceful assembly.
The third issue was whether the government interference was prescribed by law. The applicants argued that their convictions under Article 283(1) of the Criminal Code could not be prescribed by law because the notion of “serious breach of public order,” as specified in the provision was not clearly defined and thus, it could not legitimately be regarded as a feature characterising the criminal offense in question. The Court was of the opinion that while the wording of Article 283(1) was to a certain extent vague, it stratified the qualitative requirement of the Court’s case law, “as ordinary life can be disrupted in a potentially endless number of ways.” [para. 113] Furthermore, the Court found that the applicants “could have foreseen, to a reasonable degree in the circumstances that their actions as described above, entailing long-lasting roadblocks with ensuing disruptions of ordinary life, traffic and economic activities, could have been deemed to amount to a ‘serious breach of public order’ attracting the application of Article 283(1) of the Criminal Code.” [para. 114] Accordingly, the court concluded that the interference was prescribed by law within the spectrum of Article 11.
Lastly, the Court assessed whether the interference pursued a legitimate aim and was “necessary in a democratic society.” The court agreed with the government’s submission and held that the criminal convictions pursued the legitimate aims of preventing public disorder and protecting the rights and freedom of others, notably the right to move freely on public roads without restriction. [para. 140]
As to the question of necessity in a democratic society, the Court first underscored that the right to freedom of assembly is “one of the foundations of a democratic society,” but is subject to a number of exceptions “which must be narrowly interpreted and the necessity for any restrictions must be convincingly established.” [para. 142] In other words, it must be addressed whether the interference at issue “answered a ‘pressing social need’ and, in particular, whether it was proportionate to that aim and whether the reasons adduced by the national authorities to justify it were ‘relevant and sufficient.’” [para. 143]
The Court held that in some circumstances, restrictions to the right of freedom of assembly “may serve to protect the rights of others with a view to preventing disorder and maintaining an orderly flow of traffic.” [para. 157] In this respect, it ruled that the applicants had violated the terms of the authorization given by the municipalities by moving from the designated areas to blocking major highways. It dismissed the farmers’ contention that creating roadblocks was their last resort to voice their concerns, pointing out to the existence of alternative and lawful means at their disposal to protect their interests. Moreover, the Court was of the opinion that the act of blocking highways “had no direct connection with the object of their protest, namely the government’s alleged lack of action vis-à-vis the decrease in the prices of some agricultural products.” [para. 171]
It further determined that the applicants’ acts were reprehensible, as they intentionally and deliberately sought to disrupt ordinary life and lawful activities that were being carried out by others. According to the Court, “[s]uch behaviour might therefore justify the imposition of penalties, even of a criminal nature.” [para. 173] It also noted that the conduct of the State authorities was one characterized by tolerance and pursuant to their positive obligations under the Convention as they ensured the demonstrators and citizens’ safety during the peaceful assembly and the subsequent roadblocks.
Based on the foregoing analysis, the Grand Chamber ruled that the applicants’ criminal convictions did not violate their right to freedom of peaceful assembly under Article 11 of the Convention.
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The decisions of the Grand Chamber of the European Court of Human Rights are final and binding between the parties.
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