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 considered that the right to freedom of expression of three Russian nationals had been violated due to their conviction for public disorder during a political demonstration. The plaintiffs had taken part in a protest that included temporarily occupying government offices, barricading themselves in and throwing leaflets, firecrackers, and waving flags outside a government building. The European Court considered that while their initial arrest and forceful removal from the government building was justified, the national courts had failed to provide “relevant and sufficient” reasons for the five-year sentence that had been laid down against the plaintiffs.
Sergey Aleksandrovich Yezhov, Oleg Aleksandrovich Bespalov and Grigoriy Anatolyevich Tishin were members of the National Bolshevik Party (NBP). They participated in a protest against a draft bill that would have transformed certain social benefits into monetary compensation. On August 2, 2004, a group of about thirty members of the NBP gathered in front of the Ministry of Health and Social Development, entered the building and barricade themselves inside an office, where minor property damage occurred. They threw out of a window a portrait of the president of Russia and waved NBP flags through the open windows. They were then arrested and charged with breaching public order [para. 8]. On December 2004, a District Court found them guilty of disorderly acts and intentional destruction and degradation of others’ property [para. 12], and sentenced each to five years’ imprisonment [para. 13]. They appealed, but on March 2005 the appeal court upheld the conviction. The reviewing Court considered that the use of a nail gun to barricade themselves and of firecrackers “could be regarded as weapons, that the defendants rather than the police had been responsible for the damage to property and that their actions, in addition to destabilising the work of the Ministry, had resulted in significant pecuniary losses for it” [para. 16].
The decision by the European Court was handed down by a Chamber formed by Paul Lemmens acting as President, and judges Georges Ravarani, María Elósegui, Darian Pavli, Anja Seibert-Fohr, and Peeter Roosma (judge Dmitry Dedov issued a dissenting opinion). For the majority of the Court, the core of the matter had to do with whether the conviction questioned by the plaintiffs amounted to an undue interference with the applicants’ right to freedom of expression. In order to assess that question, the Court analyzed whether the conviction was prescribed by law, pursued a legitimate aim and was “necessary in a democratic society” [para. 25].
The Court recalled that in previous cases—-such as e.g. Hashman v. the United Kingdom—-the Court found that disruptive protests, involving some sort of breach of the public order, were found to constitute expressions of opinion protected under Article 10 [para. 26]. Therefore, the Court considered that there was indeed an interference with their right to freedom of expression.
On the first step of the three-prong test used by the European Court to assess the legitimacy of said interference, the judges considered that the arrest and subsequent conviction was indeed prescribed by law “in particular, by Article 91 of the Code of Criminal Procedure … and Articles 213 and 167 of the Criminal Code” [para. 29]. Regarding the need for the interference to pursue one or more legitimate aims, the judges found that the procedure against the applicants “pursued the legitimate aims of preventing disorder and protecting the rights of others” [para. 30].
In particular, the Court found that the police were acting within their bounds when it arrested and removed protestors from the government building. But the Court also recalled that in order to assess whether a criminal conviction was indeed “necessary in a democratic society”, the reasons offered by national courts to sustain the conviction must be “relevant and sufficient” to justify such a strong interference. And the Court considered that the Russian courts had failed to meet said standard. Indeed, the European judges held that the District Court failed to distinguish the specific acts that each individual committed during the protest [para. 33]. It also found that the District Court had also considered the content and form of the anti-government message conveyed by the protestors, and that—-thus—-it had penalised them for that specific political message. For the Court, the District Court “showed a degree of animus towards the applicants’ political views that is difficult to reconcile with the Article 10 duty on national authorities to remain neutral with respect to legitimate political viewpoints and not to dissuade others from criticising government policies altogether” [para. 34].
For that reason, the Court considered that the reasons offered by the State to sustain the applicant’s conviction were not “relevant and sufficient”, and thus judged that the rights protected by Article 10 had been violated.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression, because it protected demonstrations against public policy, including acts that may cause minor disorders.
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.
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