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 European Court of Human Rights (ECtHR) held that Russia violated the applicants’ rights to freedom of assembly and an effective remedy, Articles 11 and 13 respectively, when it imposed a number of restrictions on the location, time or manner of assemblies and provided no means of allowing a judicial remedy against the restrictions prior to the assemblies taking place. The Russian authorities imposed restrictions on separate assemblies proposed by the fifteen applicants to commemorate variously the killing of a famous human-rights lawyer and a journalist, to protest against a draft law prohibiting adoption of children of Russian nationality by U.S. citizens, and another to promote the rights of homosexuals. The Court reasoned that there had been an interference with the applicants’ rights which could not be justified given the wide discretion enjoyed by the executive with no effective legal safeguards against the resultant arbitrary and discriminatory exercise of its powers.
The applicants had proposed various assemblies (unrelated to each other), inter alia, to commemorate the killing of a famous human-rights lawyer and a journalist, to protest against a draft law prohibiting adoption of children of Russian nationality by U.S. citizens and another to promote the rights of homosexuals. The authorities imposed a number of restrictions on the assemblies’ location, time or manner of conduct. This, according to the applicants, effectively made the assemblies invisible to their target audience. The applicants were unable to obtain a judicial remedy prior to the proposed events. In those cases where the applicants had attempted to assemble at the location and time chosen by them, the assembly was dispersed and the participants arrested and/or found liable for administrative offenses. The applicants complained, inter alia, under Articles 11 and 13 of the European Convention on Human Rights (ECHR) of a breach of their rights to freedom of assembly and a lack of a respective remedy in that respect.
The Court first assessed whether there had been an interference with the applicants’ right to freedom of assembly and held that there had because the refusals of the authorities to approve the location, time or manner of conduct of public events planned by the applicants had the effect that the applicants either cancelled the events or decided to go ahead regardless of the risk of dispersal, arrest and prosecution.
The question was then whether the interference could be justified. The Court noted that although the domestic authorities could make proposals to the organizers of an event for changes in the location, time or manner of conduct, there was no requirement for any assessment of the proportionality of such a measure. This resulted in a clear risk of arbitrariness, illustrated by the present case. Several of the applicants had experienced situations where opposition groups, human-rights defenders or gay-rights activists were not allowed to assemble at a central location and were required to go to the outskirts of town on the grounds that they might hinder traffic, interfere with the everyday life of citizens, or present a security risk, and were dispersed and arrested if they refused to comply. On the other hand pro-government public events were allowed to take place at the same time and location, traffic, everyday-life disturbances and security risks notwithstanding. A good example of this was a situation where an LGBT-rights activist who had proposed ten different locations in the town center for a public event, all of which were rejected on various grounds, while an anti-gay public event was approved to take place at one of those same locations on the same day. The Court found that the facts of the case proved the lack of any effective legal safeguards against the arbitrary and discriminatory exercise of the wide discretion left to the executive.
The Court further noted that a general ban on demonstrations could only be justified if there was a real danger of disorder which could not be prevented by other less stringent measures. In Russia, the existing prohibition on holding public events in the vicinity of court buildings was formulated in absolute terms. It was not limited to public assemblies held with the intention of obstructing or impeding the administration of justice. There was an example where some of the applicants were prevented from holding a Gay Pride event in the town center, because the chosen location was found by the authorities to be too near the Constitutional Court building. The event was completely unrelated to the Constitutional Court as it concerned LGBT-rights. Such a refusal could not be seen to be in accordance with Article 11.
The Court found it problematic that a request to hold a public event had to be made within a time- frame of six days. It was only possible to lodge a notification no earlier than fifteen days and no later than ten days before the public event with the exception of pickets. This had the effect that public events could not be held for a certain number of days after the New Year and Christmas holidays in January each year. Some applicants had thus been unable to hold a march and a meeting to commemorate the anniversary of the murders of a well-known human-rights lawyer and a journalist on January 19. The Court did not find relevant and sufficient reasons for this interference with the right to freedom of assembly.
It was, in the Court’s view, also problematic that there was no allowance in the legislation for an immediate response to some occurrence in the form of a spontaneous assembly. For example one of the applicants had wanted to protest against a draft law prohibiting the adoption of Russian children by U.S. citizens. The date of the parliamentary examination of the draft law had been announced two days before, which made it impossible for the protesters to comply with the time-limit notification.
The Court concluded that the authorities had not given relevant and sufficient reasons for their proposals to change the location, time or manner of conduct of the applicants’ public events. The legal provisions did not provide for adequate and effective legal safeguards against the arbitrary and discriminatory exercise of the wide discretion left to the executive and did not live up to quality-of-law requirements of the Convention. The automatic and inflexible application of the time-limits for notification of public events, without taking account of public holidays or the spontaneous nature of an event, was not justified. Furthermore, by dispersing the applicants’ public events and arresting participants, the authorities had failed to show the requisite degree of tolerance towards peaceful, albeit unlawful, assemblies, in breach of the requirements of Article 11 § 2.
Whereas there were time-limits for organizers to give notice of a public event, there was no legally binding time-frame for the authorities to give their final decisions before the date of the event. The judicial remedy available to the organizers was of a post-hoc character and could not provide adequate redress. Furthermore, the judicial review only concerned the lawfulness of the proposal to change the location, time or manner of conduct of an event. The courts were not required consider the issue of proportionality.
As there had thus been a lack of an effective remedy allowing an enforceable judicial decision against the authorities’ refusal to approve the location, time or manner of conduct of a public event before its planned date the Court also found a violation of Article 13 in addition to the violation of Article 11.
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