Freedom of Association and Assembly / Protests
Vajnai v. Hungary
Closed Expands Expression
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The European Court of Human Rights held that a year’s pre-trial detention and a three-year suspended prison sentence for a criminal charge of mass disorder in Russia was a violation of the rights to freedom of expression and assembly. An individual who had been involved in a protest which had occupied an administrative building in Moscow and damaged property had been arrested and held for a year before being convicted and sentenced to a three-year suspended prison sentence. The Court held that while a sanction may have been justified for the protest which had resulted in an unlawful occupation of and damage to a government building the sanction given to the individual was disproportionate to the legitimate aims of preventing disorder and was therefore not necessary in a democratic society.
On December 14, 2004, a group of forty members of the Russian National Bolsheviks Party (the Party) occupied a room in the President’s Administration building in Moscow, Russia. The protestors had sought to hand over a petition, and forced their way past security guards and blockaded themselves in the room after the guards threatened to use force. During their approximately 60 minute stay, the protestors asked for a meeting with President Vladimir Putin and waved placards calling for Putin’s resignation, chanted slogans and distributed pamphlets out of the window. During the occupation, property had been damaged.
A Russian citizen, Yevgeniya Vladimirovna Taranenko was arrested at the protest. She had attended the protest as part of research for her Masters thesis. On December 16, a District Court ordered that Taranenko remain in detention as she was “suspected of an especially serious criminal offence, might abscond, reoffend, interfere with the witnesses or obstruct the investigation in some other way” [para. 13]. Taranenko was charged with the “attempted violent overthrow of the State” and “intentional destruction and degradation of others’ property in public places” under the Criminal Code. On February 15, 2005, Taranenko’s charges were amended to “participation in mass disorder”. Taranenko remained in custody throughout this period.
On June 30, 2005, the Tverskoy District Court rejected Taranenko and other defendants’ application for release on the grounds that there were reasons to believe they were flight risks if released. On July 17, the Moscow District Court rejected their appeals. On July 27 and August 3, Taranenko and the other defendants brought new applications for release, which were both rejected by the Tverskoy District Court and upheld by the Moscow City Court.
On December 8, 2005, the Tverskoy District Court found Taranenko and the other defendants guilty of “participation in mass disorder”, finding that “[i]n view of their unlawful and aggressive behaviour, they could not argue that they had participated in a peaceful political action” [para. 28]. The Court held that Taranenko’s intention was irrelevant and that “whether she had joined the direct action for academic or other purposes” she had participated in the mass disorder [para. 29]. Taranenko was given a three years’ imprisonment suspended sentence, and she was immediately released.
On March 29, 2006, the Moscow City Court rejected Taranenko’s appeal.
Taranenko approached the European Court of Human Rights, arguing that her rights to freedom of expression and to assembly had been infringed. She also submitted that her rights not to be subjected to torture or to inhuman or degrading treatment or punishment, and to liberty and security of the person were infringed in her detention.
Article 10 states: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 11 states: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.”
Judge Isabelle Berro-Lefèvre of the First Section of the European Court of Human Rights delivered the majority judgment. Judges Pinto de Alberquerque, Turković and Dedov delivered a concurring opinion. The central issue for the Court’s determination was the interference in Taranenko’s rights under Article 10 read with Article 11 was necessary in a democratic society.
Taranenko submitted that she was not a member of the Party but had attended the protest as a witness after a Party member told her about the planned protest. Taranenko was writing a thesis on “radical political movements in modern Russia” and the protest was of interest to her research. She argued that the protest opposed Putin’s policies which “violated citizens’ rights” [para. 61]. Taranenko argued that the right to freedom of expression protected “not only the substance of the ideas and information expressed, but also the form in which they were conveyed” [para. 61]. She maintained that the protest had been peaceful and that, even though any damage to property had been done by police rather than the protesters, the protesters had compensated for all damage. Taranenko argued that her detention for a year and suspended sentence was disproportionate to any legitimate governmental aim.
The Russian Government submitted that the protest of which Taranenko was a part was not peaceful as the protesters “effected a forcible and unauthorised entry into the premises of the President’s Administration and had destroyed State property there” [para. 59]. It added that the purpose of the protest was not an expression of opinion or imparting ideas but rather “to attract attention to the unlawful activities of the National Bolsheviks Party” [para. 59]. The Government referred to ways in which political opinions can be expressed legally in Russia – including public gatherings, demonstrations – but stated that this protest constituted a criminal offence, and that Taranenko’s conviction was for her criminal conduct and not the expression of her beliefs.
The Court stressed the importance of the rights to freedom of expression and assembly in a democratic society and how the right protects the expression of opinions that “shock or disturb” as well as the “form in which they are conveyed” [para. 63]. It added that the right to freedom of assembly should not be interpreted restrictively, and that a “balance must be always struck between the legitimate aims … and the right to free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places” [para. 65]. The Court underlined that the right protected by Article 11 is the right to peaceful assembly, but added that even when there is a “a real risk of a public demonstration resulting in disorder as a result of developments outside the control of those organising it” that demonstration would still fall within Article 11’s protection [para. 66].
In finding that Taranenko’s arrest was an infringement of her right to freedom of expression, the Court noted that a protest has been interpreted to constitute expressions of opinion. It accepted that the interference in her right was both prescribed by law and pursued a legitimate aim (or preventing disorder), and so the only question to Court had to examine was whether the interference was necessary in a democratic society.
The Court examined whether the arrest responded to a “pressing social need” and noted that the purpose of the protest was to draw attention to a matter of public interest – the President’s policies. It stated that it has “been the Court’s consistent approach to require very strong reasons for justifying restrictions on political debate, for broad restrictions imposed in individual cases would undoubtedly affect respect for the freedom of expression in general in the State concerned” [para. 77]. However, with reference to Appleby v. United Kingdom, the Court identified that the right under Article 10 does not “bestow any freedom of forum for the exercise of that right” or “require the automatic creation of rights of entry to private property, or even, necessarily, to all publicly owned property, such as, for instance, government offices and ministries” [para. 78]. The Court noted that the protestors in the present case had not followed the regular requirements for accessing the administration building – a building which allows for citizens to attend and present complaints – and said that this behavior combined with the number of protesters “could have frightened the employees and visitors present and disrupted the normal functioning of the President’s Administration” [para. 79]. Accordingly, the Court held that “arresting the protesters, … , and removing them from the President’s Administration’s premises may be considered as justified by the demands of the protection of public order” [para. 79].
The Court looked at the period of Taranenko’s detention and summarized the Court’s relevant jurisprudence in determining whether this penalty was proportionate to the legitimate aims. The Court found that States have a wide but not unlimited discretion in “punishing illegal conduct intertwined with expression or association” [para. 87]. The Court highlighted that important considerations include whether there has been a prison sentence for non-violent conduct, whether the accused person participated in the protest but was not personally involved in violent acts. In the present case, the Court noted that the protesters had not intended any violence or damage to property and did not, in fact, harm any person, and that the domestic courts had not proven that Taranenko had been personally involved in any damage to property. It added that the “conviction was at least in part founded on the domestic courts’ condemnation of the political message conveyed by the protesters” [para. 90].
Accordingly, the Court held that, even though some sanction may have been justified, Taranenko’s “unusually severe sanction” of lengthy pre-trial detention and a three-year suspended sentence would have had a chilling effect on protesters. It held that this sanction therefore meant that the interference in Taranenko’s rights was not necessary in a democratic society, and that Article 10, read with Article 11, had been infringed.
In their concurring judgment, Judges Pinto de Alberquerque, Turković and Dedov conducted a thorough overview of the sanctions for participation in mass disorder in European countries. They noted that the wide scope for sentencing in the Russian legislation meant there was uncertainty which would have impacted on the lawfulness of Taranenko’s treatment. These judges also stressed that Taranenko’s right to freedom of expression had been infringed by being “hindered from demonstrating inside the public building” and by her arrest and detention [para. 6]. They commented that “[s]houting and chanting political slogans, waving placards with political messages and distributing leaflets with messages of a similar nature are forms of expression and expressive conduct which clearly fall under the protection of Article 10 and which all deserve the exact same degree of protection” – but still emphasized that violent expression has no protection [para. 7]. These judges also assessed the nature of the administrative building in which the protest took place and noted that “the State is granted much greater latitude in regulating freedom of expression and expressive conduct” in buildings which house government administration [para. 8].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Court’s finding that the severity of a sanction for participation in a protest can cause a chilling effect and that a disproportionate sanction continues a violation of the rights to freedom of expression and assembly provides strong protection for the practical exercise of those rights.
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.
The ECtHR held that even if the detention of an individual is legitimately initiated, if the length of detention is disproportionate to the offense, serves a political purpose, or otherwise places a chilling effect on the behavior of the detainee, the detainee’s ECHR rights have been violated.
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