Freedom of Association and Assembly / Protests
Vajnai v. Hungary
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The European Court of Human Rights found no violation of the right to peaceful assembly when an individual was arrested, prosecuted, convicted and fined for having participated in an unauthorized protest. Mr. Ziliberberg had been involved in a peaceful turned violent protest against the local municipal decision to redact student privileges for public transportation. Although Mr. Ziliberberg denied that he had been involved in any violence, domestic courts convicted him and imposed a fine. He appealed his conviction but was unable to attend the hearing of his appeal because his summons was only posted the day before the hearing. The court found that Mr. Ziliberberg’s right to a fair hearing had been violated because he had not received any prior notice of his appeal hearing. However, the European Court refused to find a violation of his right to peaceful assembly by reasoning that States can impose sanctions to enforce compliance with laws, such as requiring that protests be authorized.
On April 18, 2000, Mr. Ziliberberg attended a demonstration at the Great National Assembly Square in Chişinău to protest against a municipal decision to revoke public transportation privileges for students. The demonstration was not authorized as required by law and the organizers did not even apply for authorization. The protest began peacefully, but later some members of the crowd allegedly started throwing eggs and rocks at the municipal building. The police arrested Mr. Ziliberberg, subjected him interrogation by criminal investigators, and charged him with being an active participant in an unauthorized protest in violation of Article 174/1 § 4 of the Code of Administrative Offences (CAO).
During the course of his police interview, Mr. Ziliberberg wrote an official statement that admitted he was a participant at the demonstration but denied that he engaged in any violent behavior. The case was referred to the Centru District Court. On April 19, 2000, the Centru District Court found Mr. Ziliberberg guilty of the administrative offence and fined him MDL 36 (or 3.17 euros). In its order, the Centru District Court stated that Mr. Ziliberberg had actively participated in a demonstration of students, which had been carried out without authorization, and that he had admitted participating in the demonstration. On April 28, 2000, Mr. Ziliberberg filed an appeal claiming that the fine contravened his freedom of assembly and right to strike as codified in Articles 40 and 45 of the Moldovan Constitution, and that the fine had been unlawfully imposed on him.
On May 4, 2000, at 10 a.m., the Chişinău Regional Court heard the appeal in Mr. Ziliberberg’s absence and dismissed it. Mr. Ziliberberg claimed that he had not received the notice of summons until May 4 after 10 am, despite the government’s initial claim that the notice was mailed out on May 2 and should have arrived on May 3. The date on the postage stamp on the envelope of the notice appeared to state that the summons had been mailed out on May 3.
On May 10, May 18, and June 22, Mr. Ziliberberg attempted to file requests for annulment of the Chişinău Regional Court decision due to fact that he had not been properly summoned. His requests were denied on the basis that an annulment was not a remedy offered under CAO. On June 12, upon request of the bailiff, Mr. Ziliberberg paid the fine.
Mr. Ziliberberg brought a claim before the European Court of Human Rights claiming that his arrest, fine and appeal had violated his right to freedom of peaceful assembly (Article 11 of the European Convention on Human Rights) and right to a fair hearing (Article 6 of the European Convention on Human Rights).
On May 4, 2004, the European Court of Human Rights (Court) dismissed Mr. Ziliberberg’s complaint as it related to the right to freedom of peaceful assembly under Article 11 of the European Convention on Human Rights (Convention). The Court began by noting that there had been an interference with the right since “an individual does not cease to enjoy the right to peaceful assembly as a result of sporadic violence or other punishable acts committed by others in the course of the demonstration, if the individual in question remains peaceful in his or her own intentions or behaviour.” In this case, although the demonstration did turn violence, there was no indication that Mr. Ziliberberg was involved in the violence. However, this interference with the right could only amount to a violation if it was not “prescribed by law,” made in pursuit of a legitimate aim, or necessary in a democratic society.
In this case, the Court reasoned that the interference was “prescribed by law.” In response to Mr. Ziliberberg’s argument that the law was too vague, the Court noted that the “‘active participation’ in a demonstration might take so many forms that it might prove impossible to make an exhaustive list within a legal provision. It is therefore the duty of the courts to decide in every particular case what is ‘active participation’ and what is not.” The Court also held that the interference was in pursuit of the legitimate aim of preventing disorder.
When deciding whether the interference was “necessary in a democratic society,” the Court focussed its attention on the fact that the demonstration had not been authorized in accordance with the national law. It held that an authorization procedure will not encroach upon the requirements of the Convention right to freedom of peaceful assembly when it is solely for the purpose of ensuring the peaceful nature of a meeting. The Court went on to state that, given the fact that authorization procedures can be compatible with the right to freedom of peaceful assembly, the authorities must be able to apply sanctions to those who participate in demonstrations that do not comply with the requirement. It observed that the “impossibility to impose such sanctions would render illusory the power of the State to require authorisation.” Turning to the present case, the Court concluded that the authorities imposed a sanction on Mr. Ziliberberg “strictly for his failure to comply with the prohibition on participation in unauthorised demonstrations.” It also noted that the penalty did not appear disproportionate to the legitimate aim. Mr. Ziliberberg’s claim in relation to Article 11 of the Convention was, therefore, dismissed.
In February 2005, the Court delivered a judgment on the merits for Mr. Ziliberberg’s claim that there had been a violation of his right to a fair hearing under Article 6 of the Convention. The Convention right to a fair hearing only applied to cases where civil rights were being determined, or where the case is of a criminal nature. It found that, although the government did not class the administrative offence as falling within its criminal law, a number of cumulative factors rendered Mr. Ziliberberg’s conviction criminal in nature. The Court noted, for instance, that although “the fine was not intended as pecuniary compensation for the damage it was punitive and deterrent in nature” which is customarily the distinguishing feature of a criminal penalty. It also reasoned that Mr. Ziliberberg’s arrest, detention, and interrogation by the police indicated that it was of a criminal nature. The Court also took into account that Mr. Ziliberberg seemed to risk a term of imprisonment if he failed to pay the fine imposed.
The Court went on to find that there had been a violation of Article 6 of the Convention as Mr. Ziliberberg was not able to participate effectively in his criminal trial. Based on the postmark dated May 3, 2000 on the envelope of his summons, and the fact that the summons was only sent one day prior to the hearing, the Court concluded that Mr. Ziliberberg was not given any prior notice of the hearing of his appeal. It noted that Article 6 of the Convention “guarantees the right of an accused to participate effectively in his criminal trial. [Including] a right not only to be present but also to hear and follow the proceedings.” The Court concluded that Mr. Ziliberberg could not have exercised his fair trial rights without being present or given the opportunity to be present.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case contracts expression by finding no violation of the right to freedom of peaceful assembly where an individual had been arrested, detained, subject to interrogation, convicted and fined for his participation in a protest. The European Court of Human Rights recognized that systems requiring that protests be subject to prior-authorization were not automatically incompatible with the right to freedom of peaceful assembly. It also gave States leeway to impose criminal sanctions against individuals who failed to comply with such systems, even in cases where those individuals did not act in a violent manner, without considering the chilling effect such sanctions could have on protesters. The case does, however, provide some positive jurisprudence recognizing that administrative offences in relation to protests could still have to comply with the fair trial standards that apply to criminal cases, even where administrative offences are not treated as being part of domestic criminal law.
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.
Judgments of the European Court of Human Rights are binding upon parties to the case and constitute an authoritative interpretation of the meaning of Convention rights for all other States that are party to the Convention.
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