Case Summary and Outcome

On December 1, 2011, the European Court of Human Rights (ECtHR) held that German government was responsible for violating two German nationals’, Mr. Sven Schwambe and Mr. M.G.’s, right to freedom of peaceful assembly under the Article 11 of the European Convention on Human Rights (ECHR) and awarded them EUR 3,000 (approx USD 3250). The applicants were arrested during the demonstrations organised against the G8 summit in Heiligendamm, Rostock in June 2007 since posters bearing the inscriptions “Freedom for all prisoners” and “Free all now” were found in the applicants’ van. The Court remarked that the applicants gave a plausible interpretation of the inscriptions, namely that they directed towards police officers to release the prisoners instead of inciting prisoners themselves. The Court, in the instant case, noted that there was little scope for restricting applicants’ right to protest since there was no intention of inciting others to violence and they only aimed at participating in a debate on issues of public interest such as the impact of the G8 summit and the effects of globalisation on the people. Therefore, the Court held that the applicants’ detention was not proportionate and unreasonably interfered with their right to freedom of peaceful assembly under Article 11.

Facts

Two German nationals, Mr. Sven Schwabe and Mr. M. G. (the applicants), were arrested from the demonstrations organised against the G8 summit in Heiligendamm, Rostock in June 2007 [p. 11]. These demonstrations, according to the police, were “planned to protest against, block and sabotage the summit” and there was a “risk of property damage by left-wing extremists” [p. 7]. The police estimated that there would be around 25,000 participants at an international demonstration in Rostock on June 2, 2007, 2,500 of whom were ready to use violence, and that there would be around 15,000 demonstrators present during the summit, 1,500 of whom would be ready to use violence [p. 8].

Decision Overview

The judgement was delivered by the Fifth Section of the European Court of Human Rights (the Court) with Mr. Dean Spielmann as the President. The central issue for consideration was whether the arrests of both the applicants were violative of their right to freedom of expression and right to peaceful assembly under Article 10 and 11 of the European Convention on Human Rights (the Convention).

Firstly, the Court reiterated that Article 11 of the Convention only protected the right to “peaceful assembly” which did not cover a demonstration where the organisers and participants had violent intentions [p. 103]. On the same hand, in the Court’s view, the mere possibility of extremists with violent intentions joining a demonstration could not take away that right. The Court observed that, “even if there is a real risk of a public demonstration resulting in disorder as a result of developments outside the control of those organising it, such a demonstration does not as such fall outside the scope of Article 11” [p. 103]. In the present case, the Court noted although the police  expected extremists with violent intentions to join but according to the court, this by itself was not enough to withdraw the protection guaranteed to an otherwise peaceful demonstration under Article 11 § 1. The Court opined that the domestic courts did not consider that the applicants neither had violent intentions in participating in the demonstrations, nor had weapons. Regarding the posters bearing the inscriptions “Freedom for all prisoners” and “Free all now”, the Court remarked that the applicants gave a plausible interpretation of the inscriptions, which themselves clearly did not openly advocate violence. Therefore, the Court ruled that the applicants’ detention interfered with their right to freedom of peaceful assembly under Article 11 § 1 [p. 106].

Secondly, after deliberating whether there was interference with the freedom of peaceful assembly, the Court examined whether the interference was “prescribed by law” and had a legitimate aim and if it was “necessary in democratic society” [p. 107]. Although the Court held that the police authorities had a legitimate aim under Article 11 in ordering the applicants’ detention was to prevent them from committing a crime [p. 109], it wasn’t proportionate to the “legitimate aim” pursued.  While according to the Court’s opinion, the state authorities enjoyed a wider margin of appreciation when examining the need for an interference with freedom of expression [p. 114], they had to justify that the interference was “relevant and sufficient” [p. 112], and in doing so “nature and severity” of the restrictions need to be considered [p. 111].

The Court, in the instant case, noted that there was little scope for restricting applicants’ right to protest since there was no intention of inciting others to violence and they only aimed at participating in a debate on issues of public interest such as impact of G8 summit and effects of globalisation on the people [p. 117]. The Court found it difficult to conclude that the applicants’ use of banners  with ambiguous slogans was aimed at encouraging other demonstrators to use violence to liberate by force prisoners taken during the G8 summit [p. 115]. Even if the applicants could “negligently incite other people”, the Court considered that detention for almost six days, was not a proportionate measure. In particular, the Court was not convinced that there were not any effective, less intrusive measures available to attain the said aims in a proportionate manner [p. 118] and remarked that the authorities failed to achieve a “fair balance between the aims of securing public safety and prevention of crime and the applicants’ interest in freedom of assembly”.

This, according to the Court, had a “chilling effect on the expression of such an opinion and restricted the public debate on that issue” and therefore, the Court concluded that the interference with the applicants’ right to freedom of assembly was not “necessary in a democratic society” and Article 11 of the Convention was violated [p. 119].