Freedom of Association and Assembly / Protests, Political Expression
Tatár v. Hungary
Closed Expands Expression
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On January 21, 2021, the European Court of Human Rights held Ukrainian government guilty of violating applicants’ right to peaceful assembly guaranteed under Article 11 of the European Convention on Human Rights. The applicants had participated in mass protests commonly referred to as “Euromaidan” and/or “Maidan” organised against the government’s decision to suspend preparations for the signing of the Ukraine-European Union Association Agreement. The applicants alleged police ill-treatment, police brutality, arbitrary detentions, and unjustified dispersal of demonstrators. The court held that the police officers’ “increasingly violent dispersal of the series of protests” had the aim to “deter the protesters and the public at large from taking part in the protests and more generally from participating in open political debate” and therefore, violated Article 11 of the Convention.
Fourteen applications filed by thirteen applicants in this case including Mr. Shmorgunov, Mr B. Yegiazaryan, Mr Y. Lepyavko, Mr O. Grabets, Mr O. Bala, Mr F. Lapiy, Mr R. Ratushnyy, Mr A. Rudchyk, Ms O. Kovalska and Mr A. Sokolenko, alleged police ill-treatment, police brutality, arbitrary detentions, unjustified dispersal of demonstrators in connection with the mass protests commonly referred to as “Euromaidan” and/or “Maidan”, organised in central Kyiv on November 30 and December 1 and 11, 2013, January 23 and February 18, 2014 [p. 6]. These protests were organised between November 21, 2013 and February 21, 2014 in response to the decision of the government to suspend preparations for the signing of the Ukraine-European Union Association Agreement [p. 9]. In response to the protests, the authorities deployed about 11,000 police officers [p. 14] and reportedly, there were over 100 protest-related deaths, and about 1,000 protesters injured [p. 16].
On November 30, 2013, the applicants took part in the round-the-clock vigil on Maidan Nezalezhnosti in Kyiv, however unidentified Berkut officers assaulted and kicked them while trying to disperse the protesters [p. 46-52]. During the dispersal, between thirty and forty protesters were arrested which included Mr. I. Sirenko without being informed about the reasons for his detention [p. 53].
On December 1, 2013, Mr V. Zagorovka took part in the protests in central Kyiv near the Presidential Administration building when, he was temporarily blinded by tear gas, stun grenades and plastic batons, after which two Berkut officers approached him and twisted his arms behind his back [p. 86-87]. The applicant was further detained at the Golosiyivskyy District police station in Kyiv [p. 93]. Mr G. Cherevko, who was observing and filming the protests was also beaten with plastic batons by several Berkut officers [p. 125] and criminal proceedings were imitated against him on suspicion of mass disorder [p. 127].
On December 11, 2013, Mr S. Dymenko and Mr R. Ratushny were taking part in the protests in central Kyiv [p. 135]. They were captured by the police and thrown onto the pavement where he received numerous blows and strikes to the body and face [p. 137-138].
On January 23, 2014, while he was in the area adjacent to Maidan Nezalezhnosti to support the protests, Mr D. Poltavets was arrested by the police and was severely beaten by them [p. 153]. On February 18, 2014, Mr O. Zadoyanchuk was beaten up and taken to the Dniprovskyy District police station in Kyiv [p. 167].
Regarding these incidents, some official investigations also took place concerning use of excessive force by the police officers and disciplinary proceedings were initiated against the judges who dealt with the detention cases of the applicants.
The judgement was delivered by the Fifth Section of the European Court of Human Rights (the Court) with Judge Síofra O’Leary as the President. The central issue for consideration before the Court was whether the applicants’ “unlawful and brutal dispersal” by the police from the demonstration sites violated their right to freely express their political views [p. 482].
Before engaging with the factual matrix of the case, the Court laid down some general principles in relation to right to freedom of assembly. The Court reiterated that the freedom of assembly being foundation of the society should not be interpreted restrictively [p. 490]. The Court highlighted that the “application of enforcement measures, such as the use of force to disperse the assembly, the participants’ arrests, detention and/or ensuing convictions may have the effect of discouraging them and others from participating in similar assemblies in future, and more generally in open political debate [p. 493] and therefore, Article 11 protected individuals against arbitrary interference by public authorities [p. 494]. The Court also remarked that in order to establish whether an applicant may claim the protection of Article 11, the following factors are taken into consideration: (i) whether the assembly intended to be peaceful or whether the organisers had violent intentions; (ii) whether the applicant had demonstrated violent intentions when joining the assembly; and (iii) whether the applicant had inflicted bodily harm on anyone [p. 491].
The Court applied these principles to the facts of the instant case and arrived at the following observations:
First, the Court noted lack of evidence indicating that the police’s recourse to physical force against the applicants was made strictly necessary by their conduct [p. 498] since the protesters intended to be obstructive but peaceful, gathering by occupying a space in the capital’s central square to draw the attention of the authorities and the public at large [p. 497]. The Court remarked that although the protesters had erected barricades, set up tents and platforms and occupied several administrative buildings, there was no information indicating that the protesters’ intention was to be violent rather than being obstructive [p. 499]. Relying on Karpyuk v Ukraine, Application Nos. 30582/04, the Court observed that obstructive actions in principle enjoyed the protection of Articles 10 and 11 [p. 497]. The Court also emphasised that the mere possibility of occurrence of violence was insufficient to conclude that the organisers of the gathering had violent intentions and that an individual did not lose protection under right to freedom of peaceful assembly due to sporadic violence or acts committed by others in the course of a demonstration if the individual in question remained peaceful in his or her own intentions [p. 501]. In the light of the foregoing, the Court found that all the applicants enjoyed the protection of Article 11 of the Convention [p. 505].
Second, the Court opined that the governmental authorities interfered with applicants’ right to peaceful demonstration by using force to disperse them however, it had to be determine whether it was “prescribed by law” to pursue “legitimate aims” and was “necessary in a democratic society” [p. 507]. While deciding if the actions were “prescribed by law”, the court highlighted that “Ukraine lacked clear and foreseeable legislation laying down the rules for holding peaceful demonstrations” [p. 508]. The Court was unable to assess the specific legal grounds on which the actions of the police were based but noted that Ukrainian law empowered police officers to “interfere with public gatherings, including by using proportionate force, where it was necessary to stop the commission of offences, to overcome resistance to their lawful orders, maintain public order” [p. 511]. Although there was lack of clarity on this issue, the Court proceeded with the assumption that there was a basis in domestic law for the police intervention at issue and didn’t find it necessary to determine issues relating to the quality of the domestic legal framework in question [p. 514]. The Court noted that although the authorities might have “legitimate aims” to enforce the above mentioned restrictions to maintain “an orderly passage of pedestrians and the flow of traffic and, overall, preventing disorder, as well as protecting the rights of others”, the Court deferred again and didn’t consider it necessary to decide this issue [p. 516].
Third, in the court’s view, “irrespective of whether the police intervened in response to the disruption of ordinary life caused by an assembly, such as the obstruction of traffic, or to curtail violent acts of its participants, the use of force must remain proportionate to the legitimate aims of prevention of disorder and protection of the rights of others” [p. 518]. However, in the present case, the applicants were ill-treated and their participation in the protest was terminated in an unjustified manner [p. 519]. The Court concluded that “the increasingly violent dispersal of the series of protests at issue and the adoption of the repressive measures examined in this and the other Maidan cases clearly had the serious potential, if not as regards some parts of law enforcement, the aim, to deter the protesters and the public at large from taking part in the protests and more generally from participating in open political debate” [p. 520]. In the light of the foregoing considerations, the Court ruled that the “interferences with the freedom of peaceful assembly of all the thirteen applicants were disproportionate to any legitimate aims which may have been pursued and thus were not necessary in a democratic society” and therefore, there was a violation of Article 11 of the Convention [p. 521].
To conclude, the court observed that there was a violation of Article 11 of the Convention amongst other rights due to law-enforcement authorities use of excessive force, deliberate ill-treatment, and torture [p. 527].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
By ruling that the applicants’ right to peaceful assembly was violated due to police officers’ indiscriminate use of force to disperse the protests, the Court expanded expression. The Court reiterated that, “the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society” and therefore, should not be interpreted restrictively. The Court also highlighted that the “application of enforcement measures, such as the use of force to disperse the assembly, the participants’ arrests, detention and/or ensuing convictions” could discourage the protesters from participating in assemblies and therefore violated Article 11 of the Convention.
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