Approaches of the European Court of Human Rights on the right to freedom of peaceful assembly

• Main Author: Maxim Sereda
• Format: Article
• Language: English
• Published: National University of Kyiv-Mohyla Academy 2018-12-01
• Series: Наукові записки НаУКМА: Юридичні науки
• Subjects: european court of human rights case law; right to freedom of peaceful assembly
• Online Access: http://nrplaw.ukma.edu.ua/article/view/156930

This article is dedicated to European Court of Human Rights (ECHR) case law on freedom of peaceful assemblies. The author analyzes the circumstances in which the ECHR may admit that the state interferes with the right to peaceful assembles and whether this interference is legitimate from the prospective of European Convention. According to the ECHR case law, either act or nonfeasance of general or individual character taken before, during, or after the peaceful assembly could be considered as an interference in the right to peaceful assemble even if such actions had no apparent effect on the actual conduct of peaceful assembly, or formally legally not related to its consequences. The interference may also be recognized when the authorities take no necessary actions related to conduction of peaceful assembly in cases where such actions could be reasonably expected. In order to verify that the interference with the right to freedom of peaceful assembly meets the conditions of the Convention, the Court uses the special three-part test. The interference does not violate the Convention if it is prescribed by the law, has at least one legitimate aim, and is necessary in the democratic society. As to the first requirement, the general practice of the ECHR is used. The restriction on peaceful assembly would be considered as prescribed by the law if the law is accessible and sufficiently precise to enable the citizen to foresee the consequences of his or her behavior, whether lawful or not. It is very hard for applicant to prove that the restriction of the right to freedom of peaceful assembly does not pursue one of the legitimate aims of the Convention. The ECHR in most cases does not question the reference of the state to one of the legitimate aims under the Conventions. The only possible way for the applicant to prove that the restriction does not pursue one of the legitimate aims is to provide Court with the strong evidence that the reference given by the state is purely formal and another hidden aim exists that is not prescribed by the Convention. Interference with the freedom of peaceful assembly must also meet the criteria of necessity in a democratic society. In practice, this means, first of all, that the state should demonstrate a sufficient degree of tolerance for peaceful gatherings, proportionally balance the interests of the members of the assemblies and those who do not participate in them, and be ready to fulfill the positive responsibilities of the state during the peaceful gatherings.