Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The Fifth Chamber of the European Court of Human Rights held that Georgia did not violate the petitioners’ right to freedom of assembly under Article 11 of the European Convention of Human Rights, read in conjunction with the right to freedom of expression under Article 10, by dispersing the protest held at Tbilisi State University on 3 July 2006 and imposing subsequent fines on demonstrators. The petitioners were a group of professors at the university who were opposed to several university reforms implemented by the rector, Mr G.Kh, and organized several protests in 2006. On 3 July 2006, the petitioners staged a massive protest at the university and entered the office of the rector in an attempt to remove him from office. The police negotiated for two hours with the petitioners to disperse the protest in the rector’s office, who agreed to leave without disturbance. Following administrative proceedings, the petitioners were fined approximately 45 Euros for the administrative offenses of resisting arrest and disturbing the public order. The petitioners claimed that the dispersal of their protest and the fines imposed by the state of Georgia violated their rights to freedom of expression and assembly. The state, for its part, argued that these rights were not unlimited and that the petitioners had committed administrative offenses by disrupting the normal functioning of the university and by refusing to vacate the rector’s office for two hours. The ECtHR found that Georgia had interfered with the petitioners’ right to assembly by dispersing the protest and fining them. However, it also found that such a restriction was lawful and pursued the legitimate aim of maintaining public order and the normal functioning of the university. The ECtHR held that the measures were necessary in a democratic society in order to preserve the functioning of the university and noted that the state had not used force and had been tolerant of various protests carried out by the petitioners, even allowing them to protest inside the university after they had left the rector’s office.
The petitioners, Vakhtang Tuskia, Jemal Mebonia, Maia Natadze, Tengiz Sanadze, Giorgi Gogolashvili, Medea Sikharulidze, Avtandil Arabuli, Gela Dolidze and Demur Bakhtadze, were professors at Tbilisi State University (“the University”) and citizens of the state of Georgia. Several of them were also members of the University’s Grand Academic Council, which was the highest representative body of the University. They objected to several reforms initiated by the new administration of the University, which were carried out in accordance with the nationwide higher education reforms of 2004 and 2005. Among the most controversial reforms —ordered by Presidential Decree 473— was the decision to repeal the University Charter, thus abolishing the Grand Academic Council.
As part of their open opposition to the reforms within the University, the petitioners initiated several legal proceedings to challenge them and protested for several months to denounce what they considered “the destruction of the University.” [para. 5] The petitioners also organized several public meetings to show their disagreement with the reforms.
On the afternoon of 3 July 2006, the petitioners held a public meeting of staff and professors in the main hall of the university’s central building. This meeting was authorized by the rector, Mr G.Kh, who was the official in charge of undertaking the university reforms, in accordance with the guidelines of the national higher education reforms. During the public meeting, the protesters, many of them members of the Grand Academic Council dissolved by the reforms, decided to elect Jemal Mebonia —one of the petitioners—as the new rector and demanded the resignation of the rector, Mr. G.Kh. Consequently, the protesters went to Mr. G.KH’s office to inform them of the decisions taken by the assembly. During the public meeting, the demonstrators decided to dismiss the rector, Mr G.Kh, from his job and went to his office to inform him of their decision. The police then arrived to remove the demonstrators from the rector’s office. According to the petitioners’ version, the incidents lasted for ten minutes; for the police, they lasted longer than an hour. After the protesters were removed from the Rector’s office, about 400 people gathered in one of the university’s classrooms to continue the protest. According to the petitioners, the police locked the doors at around 11 p.m., preventing the people inside from leaving, and they remained locked in all night without access to water, food, or toilets until 8 a.m. the next morning.
On the same day, 3 July 2006, the state initiated criminal proceedings under Article 226 of the Criminal Code of Georgia against the petitioners for the “organization and participation in group actions violating public order.” [para. 16] Witnesses, employees, and the rector of the University testified in those proceedings and identified the nine petitioners as “those who had forced their way into the Rector’s office, insulted him, and demanded his resignation.” [para. 18] Witnesses also testified that the University remained paralyzed during the incident and that several members of the University administration were unable to perform their usual functions and duties.
On 29 July 2006, the prosecutor issued a decision closing the criminal proceedings on the grounds that the actions of the applicants did not comprise the elements of a crime. However, the prosecutor held that the nine petitioners “committed offenses—namely arbitrary behavior, a minor violation of public order, and disobeying the lawful instructions of law-enforcement personnel—which constitute administrative offenses under Articles 174, 166, and 173 of the Code of Administrative Offences.” [para. 24] In this regard, the public prosecutor requested new administrative proceedings against the petitioners. This decision was notified to the petitioners on 29 July 2006. Simultaneously, they were notified of a hearing, in the context of the aforementioned administrative proceedings, for the following day.
On 30 July 2006, the Tbilisi City Court held a hearing in the administrative proceeding against the applicants. The petitioners claimed that they did not have sufficient time to prepare their defense or to challenge the prosecutor’s decision of 29 July. A new hearing was held on 3 August 2006, where the petitioners argued that they did not break into the rector’s office by force but entered it peacefully and sat in his office. They argued that they did not insult or threaten the rector, Mr G.Kh, rather peacefully informed him of the demonstrators’ decision to remove him from office. Furthermore, they claimed that they did not disobey police orders. On the contrary, they complied with the police order to vacate the rector’s office within ten minutes and without disturbance. The petitioners argued that the office of the rector, Mr G.Kh, was not a “public place” for the purposes of the application of Article 166 of the Code of Administrative Offences. They also argued that they were exercising their right to freedom of expression and assembly.
For their part, the police and university security personnel testified that the incidents in the office of the rector lasted more than an hour because the petitioners refused to leave the office. They also mentioned that the petitioners repeatedly insulted Mr G.Kh and demanded that he leave his office because he had been dismissed.
On 4 August 2006, the Tbilisi City Court found Vakhtang Tuskia, Jemal Mebonia, Maia Natadze, Tengiz Sanadze, Giorgi Gogolashvili, Avtandil Arabuli and Gela Dolidze, guilty of administrative offenses under Articles 166, 173 and 174 of the Code of Administrative Offences, and fined them 100 Georgian laris (approximately 45 euros) each. On the other hand, the court found that Medea Sikharulidze and Demur Bakhtadze did not disobey the police order to leave the rector’s office, as they had left before the police arrived, and found them guilty only of administrative offenses under Articles 166 and 174 of the Code of Administrative Offences, and also fined them 100 Georgian laris. The court found that the petitioners’ actions were unlawful and arbitrary within the meaning of Article 174 of the Code of Administrative Offences because the Grand Academic Council meeting held on 3 July did not have the authority to dismiss the rector and the protest disrupted the normal functioning of the University.
The court also found that the petitioners committed a minor breach of peace by entering the rector’s office, demanding his resignation, and insulting him by asking him to leave his office immediately. Furthermore, the court rejected the petitioners’ argument that the rector’s office was a private place because the mere fact that it was open to the public made it a “public place” within the meaning of the Code of Administrative Offences.
In turn, the court held that while everyone has the right to freedom of expression and assembly, people must refrain “from violating others’ rights and interests, from encroaching upon [others’] honor and dignity, [and] from violating […] public order […] [He or she] should not, in exercising his or her constitutional rights, commit acts prohibited by law, which, in the court’s view, in fact, happened on 3 July 2006 in the office of the Rector.” [para. 38]
Moreover, with the exception of Medea Sikharulidze and Demur Bakhtadze, the court held that the petitioners had violated Article 173 of the Code of Administrative Offences which prohibits disobeying a lawful order given by the police since the petitioners refused for more than an hour to vacate the office of the rector.
The petitioners appealed the decision of the Tbilisi City Court to the Tbilisi Court of Appeal. They argued that there was no reliable evidence to hold them individually responsible for the events of 3 July 2006 as there was a crowd of 200 people, which made it impossible to identify each of them individually. They also argued that the protest of 3 July 2006 was protected by the rights to freedom of expression and assembly.
On 4 September 2006, the Tbilisi Court of Appeal dismissed the petitioners’ appeal. The court held that the first instance court’s decision was duly reasoned and lawful.
On 16 March 2007, the petitioners lodged an application against Georgia before the European Court of Human Rights arguing “that the dispersal of their protest at Tbilisi State University on 3 July 2006 and the related administrative proceedings had amounted to an unlawful and disproportionate interference with their freedom of expression and freedom of assembly under Article 10 and Article 11 of the Convention.” [para. 3] In addition, they considered that the domestic proceedings violated their fair trial and due process guarantees under Article 6 of the Convention.
The main issue before the Fifth Chamber of the European Court of Human Rights was whether the police dispersal of the 3 July 2006 protest at Tbilisi State University, the subsequent administrative proceedings for disturbing public order at the university, and the fines imposed by domestic judges violated the petitioners’ rights to freedom of expression and freedom of assembly as laid out in Articles 10 and 11 of the European Convention of Human Rights (ECHR).
The petitioners argued that they had the right to express their dissent within the university because it was their field of work. They further alleged that the state used force to evict them from the university and that the use of force was disproportionate. They stated that the authorities should have shown greater tolerance for dissent and peaceful assembly within the university. The petitioners also stated that the dispersal of their protest at Tbilisi State University on 3 July 2006, the subsequent administrative proceedings conducted against them, along with the fines, were a violation of their right to freedom of expression and their right to freedom of assembly. They also argued that the domestic administrative proceedings violated their rights to due process and a fair trial under Article 6 of the Convention because the domestic judges failed to determine individual responsibilities for the events of July 3, 2006, and failed to question key witnesses, such as rector G. Kh.
For its part, the State argued that the right of individuals to protest within public institutions was not unlimited. In this regard, it argued that the petitioners had alternative places to demonstrate, such as the university courtyard, where they could have held their protest without interfering with the educational activities of the institution. Furthermore, the State said that Article 9(1) of the Police Act allows the police to intervene in a demonstration that violates public order and the rights of others, as was the case with the July 3, 2006 protest. It stated that the decision to disperse the protest was based on the legitimate aim of protecting the rights of third parties and because the demonstrators refused to remove themselves from the office of the rector. The State also noted that the petitioners forcibly entered the office of Mr G.Kh. and insulted him and other university employees and that they asked the demonstrators to leave the office for more than two hours. The State also stressed that the demonstration disrupted the proper functioning of the university and prevented students from exercising their right to access education. The State mentioned that no violence was used against the petitioners, that none of them were arrested for the incidents, and that they were not locked in the Great Hall because the back door remained open, and they could have easily left. Finally, it stated that the petitioners were not fined for holding a peaceful assembly, but rather for violating specific provisions of the Code of Administrative Offences.
First, the ECtHR recalled the general principles governing the right to freedom of expression and assembly, as laid out in Articles 10 and 11 of the Convention, respectively. On this point, it stated that freedom of expression constitutes one of the essential foundations of any democratic society, citing the ECtHR case Oberschlick v. Austria (no.1 ), 23 May 1991, Series A no. 204. It also added that states have little scope to restrict expression concerning matters of public interest, as set in Feldek v. Slovakia, no. 29032/95, ECHR 2001-VIII, and Sürek v. Turkey (no. 1) [GC], no. 26682/9, ECHR 1999-IV.
The ECtHR also held that the right to assembly is an essential right in a democratic society, citing the ECtHR cases of Djavit An v. Turkey, no. 20652/92, ECHR 2003-III, and Barraco v. France, no. 31684/05, 5 March 2009. However, the ECtHR emphasized, referring to Kudrevičius and Others v. Lithuania [GC], no. 37553/05, ECHR 2015, that “Article 11 of the Convention only protects the right to peaceful assembly, a notion which does not cover a demonstration where the organizers and participants have violent intentions.” [para. 69] Thus, the ECtHR held that the right to assembly includes the right to choose the time, place, and manner in which the assembly is held. Nonetheless, it remarked that this right does not entail “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. 72], as it was also said in Appleby and Others v. The United Kingdom, no. 44306/98, ECHR 2003, ECHR 2015. 44306/98, ECHR 2003-VI.
Subsequently, the ECtHR recalled that the right to freedom of expression and the right to assembly may only be restricted by states if such measures are lawful, necessary in a democratic society, pursue a legitimate aim, and are “proportionate to the legitimate aim pursued.” [para. 70]
The ECtHR examined the case in light of the aforementioned standards. It clarified that the core of the petitioners’ argument was that the dispersal of the protest on 3 July 2006, and the administrative fines imposed upon them, constituted an interference with their right to peacefully protest. In this sense, the ECtHR held that “Article 11 is to be regarded as a lex specialis and that it is unnecessary to take the complaint under Article 10 into consideration separately,” [para. 73] citing Primov and Others v. Russia, no. 17391/06, 12 June 2014. The ECtHR, following Primov, said that in the exercise of the right to assembly, the participants do not only seek to express their opinion but to do so together with others. Furthermore, the ECtHR considered that Article 11 of the Convention should be examined in the present case in the light of the principles of Article 10 explained above.
Next, the ECtHR analyzed whether the state of Georgia interfered with the exercise of the petitioners’ right to peaceful assembly. On this issue, the ECtHR noted that although the petitioners’ protest generated tense situations, their conduct was not violent in nature. Considering this, the ECtHR held that the petitioners’ protest was protected under Article 11 of the Convention, in conjunction with Article 10. The ECtHR then recalled that the petitioners were expelled by the police from the office of the rector of the University and that they were subsequently charged and found responsible for several administrative offenses for the events of 3 July 2006. The ECtHR therefore concluded “that their removal and administrative responsibility constituted an interference with their right to freedom of assembly.” [para. 75]
Hence, the ECtHR had to study whether said interference was prescribed by law, pursued a legitimate aim, and was necessary in a democratic society. Regarding the “legality” requirement, the ECtHR accepted that the interference with the petitioners’ right to assembly had a legal basis in domestic law, particularly in the Code of Administrative Offences of Georgia. On this point, the ECtHR concluded that “the requirement of lawfulness is satisfied.” [para. 77]
Then, the ECtHR examined if the interference pursued a legitimate aim. The ECtHR agreed with the Georgian domestic courts that the protest of 3 July 2006 significantly disrupted the normal functioning of the University. Furthermore, the ECtHR held that “the behavior of the petitioners—intensified by the number of protesters in the corridors of the building—intimidated the employees and students and disrupted the normal functioning of the educational establishment. At the same time, the petitioners’ protest at the very least impeded the work of the acting Rector and his immediate colleagues for about two hours.” [para. 78] Under such premise, the ECtHR—citing the precedent set in Taranenko v. Russia, no. 19554/05, 15 May 2014, and Steel and Others v. the United Kingdom, 23 September 1998, Reports of Judgments and Decisions 1998-VII—concluded that the “decision of the police to remove the petitioners and other protesters from G.Kh.’s office was justified by the demands of public order and the interests of others.” [para. 78]
Next, The ECtHR considered whether the interference in question was necessary in a democratic society. On one hand, the ECtHR recognized that the petitioners wished to draw the attention of the academic community of the University to their rejection of the reforms that were implemented both nationally and at the University. The ECtHR also underscored that the issue was a matter of public interest and that Georgia had little margin to restrict such a debate. On the other hand, the ECtHR noted that the authorities allowed the petitioners to hold a meeting in the Great Hall of the University for several hours. The ECtHR also mentioned that the authorities were tolerant when the protesters spent at least two hours in the rector’s office demanding his resignation and that at no time did the police use physical force against them, rather negotiated with them for more than an hour to achieve the peaceful removal of the petitioners from G.Kh.’s office. Furthermore, after the eviction, the authorities allowed them to remain in the University to continue their protest. Considering these circumstances, the ECtHR concluded that “the removal of the petitioners from the acting Rector’s office in order to achieve the legitimate aims pursued was not disproportionate.” [para. 80]
Afterwards, the ECtHR analyzed whether the administrative sanction imposed on the petitioners—for breaching public order, under Article 166 of the Code of Administrative Offences, and resisting authority, under Article 173 of the Code of Administrative Offences— violated Article 11 of the Convention.
The ECtHR recalled that Article 166 of the Code of Administrative Offences provided for a fine for those who cause an offensive nuisance to a person or disturb public order and peace. It held that “in calling for the resignation of a public official, the petitioners were exercising their right to freedom of expression.” [para. 82] Citing Kandzhov v. Bulgaria, no.68294/01, 6 November 2008, the Court said that the petitioners’ call for the Rector’s resignation could not in and of itself have been deemed to be insulting. However, the ECtHR concluded that “the petitioners’ conduct did indeed disrupt public order on the premises of the University.” [para. 83] Thus, the ECtHR concluded that the interpretation of the Georgian domestic courts was not arbitrary and that the petitioners could have foreseen that their actions were disruptive to the functioning of the University and would violate Article 166 of the Code of Administrative Offences.
Moreover, the ECtHR mentioned that Article 173 of the Code of Administrative Offences of Georgia provides for the sanction of a fine for those who resist an order of the police. The ECtHR held that although the petitioners did not physically resist, it took the police approximately one hour to negotiate the petitioners’ departure from the rector’s office as they repeatedly expressed their refusal to leave their office.
Finally, the ECtHR examined whether the administrative sanctions were lawful, pursued a legitimate aim, and were proportionate and necessary in a democratic society. On this point, the ECtHR held that “that the interference by way of imposing administrative sanctions in the current case was prescribed by law.” [para. 85] Furthermore, the ECtHR said that the purpose of the fines was legitimate because their aim was to prevent disturbances to public order and the interests of third parties. Next, the ECtHR considered that the petitioners were dismissed from the criminal proceedings —none of them were detained— and that in the administrative proceedings, only a fine of 100 Georgian Laris (equivalent to 45 Euros) was imposed on each of them. In addition, The ECtHR took into consideration that the petitioners were able to protest against the reforms for several months, holding several peaceful meetings inside the University.
Accordingly, the ECtHR concluded that the fines imposed on the applicants for disturbing public order and resisting the police were “proportionate to the legitimate aim pursued and necessary in a democratic society.” [para. 86]
On this basis, the ECtHR concluded that Georgia did not violate Article 11 of the Convention, read in conjunction with Article 10.
Finally, the ECtHR had to analyze whether the administrative proceedings conducted by Georgia’s domestic judges violated the right to a fair trial as set in Article 6 of the Convention. On this issue, while the ECtHR acknowledged that the rector had not been examined as a witness, this did not entail a violation of the petitioners’ rights to defense and no breach of the guarantees under the ECHR.
For all the reasons set out above, the ECtHR unanimously held that Georgia did not violate the right to freedom of assembly, read in light of the right to freedom of expression, nor the right to a fair trial.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The Fifth Chamber of the European Court of Human Rights, in this decision, restricted freedom of expression and of assembly by holding that the dispersal of a protest—critical of a series of educational reforms that had been implemented—and the imposition of subsequent administrative fines on several protesters, did not violate the European Convention on Human Rights. Nevertheless, the ECtHR reached this decision after carefully analyzing and weighing conflicting rights, arguing that the dispersal of the protest and fines were lawful, pursued a legitimate aim, and were necessary and proportional. This reasoning, which is in accordance with international standards on human rights, also took into consideration that the police had not used physical force, that the petitioners had been acquitted in criminal proceedings, and that the state had tolerated several protests by the petitioners inside the university.
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