Freedom of Association and Assembly / Protests
Fanele Maqele v. Ngwabi Bhebhe and Midlands State University
Closed Expands Expression
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The plaintiff attended an authorized rally in Moscow. The plaintiff was not the organizer of the rally. During the rally, the plaintiff addressed the participants of the rally with a speech and anti-government slogans.
At the end of the rally, the plaintiff was arrested and detained in isolation until January 15 for charges of holding an unsolicited rally.
The plaintiff complained to the European Court of Human Rights (“ECtHR”) that his right to freedom of expression and assembly were violated. The Court agreed that the plaintiff’s Article 11 right to peaceful assembly was violated.
On December 10, 2010, eight individuals, whom did not include the plaintiff, requested permission from the Moscow mayor’s office to hold a rally for 1,500. The permission was granted on December 22, 2010, but the rally’s side was limited to 1,000. This rally took place on December 31, 2010.
On December 16, 2010, another group of three persons, whom also did not include the plaintiff, requested to hold a rally at the same place as the first rally. The rally was not authorized as two of the persons were arrested and one was abroad.
The plaintiff attended the authorized rally where he gave a speech and chanted anti-government statements. After the rally, he proceeded to exit the area from the sole exit in the area cordoned for the rally by the police. At the exit, he witnessed police officers arresting protesters. Shortly after, the police also arrested the plaintiff and he was taken to a police station.
At the station, officers produced a report alleging that the plaintiff stood on a street leading to the square where the rally was held, called for people to join him at the rally, and yelled anti-government statements. Police officers allegedly approached him and asked him to stop his activities, but he did not comply. He was then asked to proceed to a police van, but instead he began to break away from the police, screaming profanities. The plaintiff signed the police report, accompanied with a phrase “100% lies.”
The plaintiff was then placed in solitary confinement in a small cell until January 2nd. On January 2nd, the plaintiff was brought to the Justice of the Peace court in Moscow. He pleaded not guilty and requested the court to review video recordings of the rally to support his claim; the review was denied on the ground that the origin of the recordings was not supported by the evidence. The prosecution called on 13 witnesses, including two police officers, who supported the plaintiff’s alleged legal violations. The court thus found the plaintiff guilty of disobeying the lawful orders of the police and sentenced the plaintiff to 15 days of administrative detention.
On January 12, the Tverskoy District Court examined the plaintiff’s appeal. He also requested the court to find the actions of the police officers who arrested him to have been unlawful. The court reviewed video recordings and testimony made by a photographer present at the scene, but decided to not take into account the evidence since the recording did not show the plaintiff’s actions prior to his arrest. The court upheld the first judicial decision.
On March 31, 2011, the plaintiff appealed for violation of civil procedure. The court refused to accept his case arguing that the issues asked to be examined were in the jurisdiction of administrative proceedings, rather than civil.
On April 4, 2011, the plaintiff appealed once again, but his appeal was dismissed.
The plaintiff then filed a complaint with the ECtHR, claiming violations of Article 10 (freedom of expression) and 11 (freedom of assembly).
The ECtHR stated that, although it does not act as a trier of fact, it does not have to be bound by the findings of domestic courts. Thus, the court may admit evidence or “pre-determined formulae” for its assessments. Based on a review of the evidence, the Court determined that the official reasons for the arrest of the plaintiff are not supported by the evidence and are thus not credible.
The Court then reiterated that the purpose of Article 11 is to protect individuals from arbitrary interference of the authorities. Restrictions to the freedom, of course are allowed, but they must be prescribed by law for legitimate purposes and necessary in a democratic society. Restrictions can be measures taken before, during and after a public assembly.
Based on the review of the evidence, the Court concluded that the plaintiff’s rights under the ECHR were violated. However, the court distinguished that the violation was not in the Russian law, but in its application, specifically, the lack of evidence corroborating that the police acted lawfully in apprehending the plaintiff.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ECtHR reiterated that it is free from bounds of fact findings of domestic courts, which potentially protects those against whom facts might have been fabricated or those who have been improperly judged.
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.
By challenging the factual findings of the Russian courts, the ECtHR offered a legal recourse to persons suffering from domestic decisions on the basis of fabricated or unsupported evidence.
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