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) ruled that the Romanian Government violated the Applicant’s freedom of expression by fining him for a short and peaceful protest held in front of a governmental building. The Applicant, Mr. Bumbeș, had handcuffed himself to the barriers blocking access to the parking area of the government’s headquarters to protest a controversial mining project. The domestic courts found that his actions were unlawful as they amounted to a breach of public peace and that he had not provided the required three-day prior notice to stage a demonstration. The ECtHR found that while the interference was lawful and pursued a legitimate aim, it was not necessary in a democratic society. As the protest was peaceful, only involved four people and was quickly disbanded, the Court reasoned that the national authorities did not show sufficient tolerance for the political speech and placed disproportionate emphasis on the failure to give prior notice for the assembly. Hence, the Court held that there had been a violation of Mr. Mr. Bumbeș’ right to freedom of expression under Article 10 interpreted in the light of the right to freedom of assembly under Article 11.
On August 28, 2013, Mr. Mihail-Liviu Bumbeș (hereinafter also “the applicant”), together with three other persons, handcuffed himself to the barriers blocking access to the parking area of the government’s headquarters. The protest was prompted by the approval by the Romanian Government of a bill regarding the mining of the gold and silver deposits in the Roșia Montană area. The mining project was considered controversial because of its potential negative impact on the environment and the local heritage. The government had approved the bill (subsequently rejected by the Parliament) without a public consultation on the matter and, in light of this decision, the applicant decided to express his discontent with the government’s approval and to raise public awareness about the bill.
When asked by a gendarme officer to the remove the handcuffs, the applicant refused and demanded to be heard by a government representative. The action was considered a lack of cooperation with the police, and the applicant was taken to the police station. A video posted the following day on YouTube clearly showed that the protest was non-violent, and it did not affect any car or pedestrian traffic in the area. Once at the police station, the applicant was fined 500 Romanian lei (approx. 113 euros), in light of the alleged breach of Articles 3 § 2 and 4 § 1 (c) of Law no. 61/1991. His actions were regarded as in violation of norms of social coexistence and of the public order and peace.
On September 18, 2013, the applicant brought an action before the Bucharest District Court challenging the police report and the fine and asking the court to annul them or alternatively to replace the fine with a warning. He claimed that freedom of expression could not be considered as an antisocial act disturbing the public order and peace. He noted that – in light of the judgment of the European Court of Human Rights in Bukta and Others v. Hungary (no. 25691/04, ECHR 2007-III) – his freedom of expression could be exercised without prior notification of the protest to the authorities. It had been, in fact, spontaneous and prompted by a decision taken by the government without the three-day prior notice requirement laid down in Law no. 60/1991 could not be complied with. Further, he observed that – because his actions had been peaceful and had not disrupted the activities of the institution – it could not be concluded that he had organized a group of people with the aim to commit unlawful acts and to violate public peace and order. Finally, he argued that the fine was not compatible with a democratic society in which the expression of dissenting opinions towards the government was essential.
On July 7, 2014, the Bucharest District Court dismissed the challenge and claimed his actions were in breach of Law no. 60/1991. The decision to handcuff himself amounted to a breach of public peace and order and of the norms of social coexistence. The Court further held that the applicant had not satisfactorily justified his decision not to follow the legal procedure to register public gatherings to the authorities. It also stated that spontaneous demonstrations fell under the scope of Law no. 60/1991. No violation of Article 11 paragraph 2 of the ECHR was found by the Court: as a matter of fact, the restriction of the applicant’s freedom of assembly was provided for by the law, it had been imposed with the aim to protect public order and prevent crime, and had been proportionate in light of the means of protest adopted by the applicant.
The applicant appealed the ruling. He reiterated that by handcuffing himself to the barrier he was exercising his right to freedom of expression and that he had behaved peacefully throughout the protest, not disrupting the institution’s activities. He further observed that the Court had failed to examine his argument about the violation of his freedom of expression and ignored the findings of Bukta and Others (see above) according to which spontaneous gatherings could be held lacking prior notice and, by implication, had misinterpreted Article 11. In particular, he noted how the Court had wrongly evaluated the circumstances which prompted the spontaneous protest (i.e., the government approving the bill abruptly and without any public consultation).
On June 10, 2015, the Bucharest County Court dismissed the applicant’s appeal and upheld the District Court’s judgement. The County Court considered that the applicant’s actions had been correctly classified. The agreement of the four persons to protest in front of the government building against the decision on the mining of the deposits in Roșia Montană had been directed at creating, without any doubt, an unauthorized meeting in breach of Article 3 § 2 of Law no. 61/1991 read in the light of Article 26 § 1 (a) of Law no. 60/1991. The applicant’s argument that his rights to freedom of expression and assembly had been violated also lacked, in the County Court’s opinion, any foundation in that Mr. Bumbeș’ protest had not satisfied the conditions for manifesting his rights (i.e., request of authorization in writing presented three days prior to the day of the protest).
Mr. Bumbeș brought an action, pursuant to Article 34 of the ECHR, before the European Court of Human Rights and he complained that the final ruling of June 2015 had violated his rights to freedom of expression and peaceful assembly, as laid down in Article 10 and 11 of the Convention. The Government of Romania submitted that, in light of the ECtHR’s caselaw (Kudrevičius and Others v. Lithuania), the case should be analyzed from the angle of Article 11 of the Convention and that, in any case, its submissions regarding Article 11 also applied to Article 10. They further argued that the applicant had not been punished because of the opinions he had expressed, nor because he had failed to give prior notice for the assembly. Rather, he was punished because he had affected the public order by handcuffing himself to the gate of the governmental building and hence Article 11, granting a right to peaceful assembly, was not applicable to the case.
The applicant contested the Government’s submissions regarding the inapplicability Article 10, by observing that he had been sanctioned as a result of his decision to express his opinion in a manner which was indeed provocative, but peaceful. In particular, Mr. Bumbeș observed that the protest had not been advertised in advance and hence was not meant to attract a large group of people, its aim only being to raise public support and awareness. With regards to the Government submission regarding the inapplicability of Article 11, he then concluded that the gathering had not been violent and that they had remained silent throughout, even when being detached from the barrier.
The Court considered the version of the facts presented by the applicant to be consistent with the evidence. It noted that it was clear – and, in fact, not denied by Mr. Bumbeș – that his actions were a demonstration of his opposition to the mining project directed at both the government and the public at large. The applicant was, therefore, exercising his freedom of expression and for this reason the Court could not “accept that the penalty imposed on the applicant could be dissociated from the views expressed by him through his actions or endorse the Government’s argument that the applicant was punished merely for committing acts affecting public order” [para. 46]. The caselaw of the Court indeed confirms – observed the Judges – that Article 10 of the Convention is applicable to views or opinions expressed through conduct (Mătăsaru v. the Republic of Moldova). With regards to the Government’s claim that Article 11 was not applicable because the protest was not peaceful, the Court observed that the applicant’s behavior “did not amount to violence or incite it, and [that] no one was injured during the event in which he was involved ( Olga Kudrina v. Russia, no. 34313/06, §§ 53-54, 6 April 2021, with further references) [para. 47]. In light of the above brief analysis, the Court concluded that Articles 10 and 11 of the Convention did apply to the case of Mr. Bumbeș, contrary to what the Government claimed.
In proceeding with its analysis, the Court examined the general principles applicable to the case. First, it reiterated that freedom of expression is at the core of democratic societies, and it is a right that is applicable also to those ideas that “offend, shock or disturb” [para. 62; and see Handyside v. the United Kingdom, and Jersild v. Denmark, 23 September 1994, § 37, Series A no. 298]. Similarly, it noted that also the right to freedom of assembly is fundamental in a democratic society and that although it shall not be interpreted restrictively, Article 11 applies however exclusively to “peaceful assembly”. Therefore, circumstances in which protesters “have violent intensions” are excluded from the provision’s scope (Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 77, ECHR 2001-IX, and Galstyan v. Armenia, no. 26986/03, § 101, 15 November 2007). In any case – the Court observed – any limitation to the right shall be in conformity with paragraph 2 of Article 11.
As regards the application of the general principles to the specific case, the Court noted that the two issues (freedom of expression and of assembly) are related in that “the protection of personal opinions, secured by Article 10 of the Convention, is one of the objectives of freedom of peaceful assembly as enshrined in Article 11 of the Convention” [para. 67]. It proceeded by stating that it was clear, from the events as represented by the applicant, that “the event constituted predominantly an expression”, in particular in consideration of the very limited time extension of the protest and of the number of participants (four). Thus, the Judges considered it to be appropriate to examine the case under Article 10, in the light of Article 11 (see Women on Waves and Others, App. No. 31276/05 (2009), and Taranenko, App. No. 19554/05 (2014), § 69).
Once established that Article 10 was the relevant provision to be considered, the Court observed that the measure adopted against Mr. Bumbeș “could not be construed to have concerned only the applicant’s conduct as such and not also the views and message expressed by him through his actions” [para. 72]. Hence, it clarified that there had been an “interference with his right to freedom of expression” (ibidem). To establish whether this interference had constituted a violation of Article 10, the Court applied the three-part test to determine whether the interference had 1) been prescribed by the law; 2 had pursued a legitimate aim; and 3 had been necessary in a democratic society to achieve that aim.
First, The Court reiterated that its power to review compliance with domestic law is limited: namely, the Court has solely the power to ascertain whether the effects of a certain interpretation of domestic law is compatible with the Convention (see Centre for Democracy and the Rule of Law v. Ukraine). Second, it observed that the domestic regulatory framework “provided for a broad interpretation of what constituted an event subject to prior notification and gave the authorities a rather wide discretion in imposing restrictions on such events, in the absence of the above-mentioned notification” [para. 82]. In light of this, it considered the requirement of foreseeability laid down in Article 10 paragraph 2 of the Convention to be fulfilled and the interference with the applicant’s right to be prescribed by law.
The Court accepted that the sanction imposed on Mr. Bumbeș was aimed at the prevention of disorder and at the protection of the rights and freedom of others. Thus, it considered the requirement of the pursuit of a legitimate aim to be satisfied.
The Court stated that the test regarding the necessity in a democratic society to achieve a certain aim requires it to “determine whether the interference complained of corresponded to a ‘pressing social need’” [para. 89]. It observed that although the States have a margin of appreciation in evaluating whether there exists such need, the final ruling on whether the restriction of an applicant’s freedom of expression is lawful under Article 10 shall be issued by the Court itself (see Association Ekin v. France, 39288/98, § 56, ECHR 2001-VIII, and Perna v. Italy). The Court needs indeed to verify whether the measure taken against the applicant was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). With regards to the case under analysis, the Judges first noted that “there is little scope under Article 10 ( 2) of the Convention for restrictions on political speech or debates on questions of public interests”. It would be necessary to have a very strong reason in order to restrict political debate in that “broad restrictions imposed on individual cases would undoubtedly affect respect for the freedom of expression in general” (see Sürek v. Turkey (no. 1), and Feldek v. Slovakia) [para 92]. The Court proceeded by observing that the protest organized by the applicant happened in a public space, freely accessible by anyone and that it was swiftly terminated by the police, the persons involved not having time to express their views. Because the domestic courts dealt with the issue by framing it within the scope of freedom of assembly, then, the Court reinstated that “a situation of unlawfulness, such as one arising under Romanian law from the staging of a demonstration without prior notification, does not necessarily (that is, by itself) justify an interference with a person’s right to freedom of assembly (see Kudrevičius and Others, cited above, para, 150)” (see paragraph 94). The proportionality requirement provided for by Article 11 shall indeed always be complied with. For the right to freedom of assembly not to be deprived of all substance, then, the police shall grant tolerance, the degree of which shall be established on a case-by-case basis. Depending on the particular circumstances of the case, the event may not have been notified to the authorities “but (i) (…) [may have been] an urgent reaction to an ongoing political event (…) or (ii) (…) [may have been] a purely obstructive protest action which because of its very nature it is doubtful, in principle and as a practical matter, that it could be subjected to prior-notification requirements” [para. 95]. The degree of tolerance requirement implies the need for domestic courts to assess the level of disturbance created by the actions of the applicant. National courts must comply with the proportionality principle, strike a balance “between the requirements of the purposes listed in Article 11(2) on the one hand, and those of the free expression of opinions by word, gesture or even silence by persons assembled on the streets or in other public places, on the other” [para. 98]. The Romanian courts had failed to strike this balance and had merely given “preponderant weight to the formal unlawfulness of the event in question” (ibidem). They had not considered whether the prior notification would have served in practice the purpose of enabling the authorities to intervene and had, by implication, disregarded the emphasis that the Court had placed “on the fact that the enforcement of rules governing public assemblies should not become an end in itself” [para. 100].
In its final remarks, the Court noted that – irrespective of its severity – a sanction “on the author of an expression which qualifies as political (…) can have an undesirable chilling effect on public speech” (see paragraph 101). In light of this, the Judges ruled that the restriction of Mr. Bumbeș’ freedom of expression was not justified by the satisfaction of the “necessity” requirement laid down in Article 10 (2) of the Convention, the interference not being necessary in a democratic society. It finally stated that there had been a violation of Article 10 interpreted in the light of Article 11 and awarded the applicant EUR 5,000 to compensate him for non-pecuniary damages.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling expands freedom of expression established by Article 10 of the Convention, and interpreted in light of Article 11. It is of particular interest that the Court ruled that the formal unlawfulness of a protest (i.e., assembly) does not entail the satisfaction of the requirements laid down in Article 11(2) and Article 10 (2).
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
ECtHT, Olga Kudrina v. Russia, App. no. 34313/06 (2021)
ECtHR, Women On Waves and Others, App. No. 31276/05 (2009)
ECtHT, Chauvy and Others v. France, App. No. no. 64915/01 (2004)
ECtHR, Sürek v. Turkey (no. 1) [GC], no. 26682/95 (1999)
ECtHR, Kudrevičius and Others, App. No.
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