As ECHR constantly asserts, freedom of peaceful assembly constitutes one of the essential foundations of democratic society.[i] Moreover, by multiplying exponentially the power of each individual, the right to assembly constitutes: a) fertile ground for the exercise of constitutionally embedded rights, b) an apposite means for the unmediated expression of citizens and their coming to the political foreground, c) ultimately, a quasi guarantee of popular sovereignty (without losing its character as individual freedom to be necessarily exercised collectively).
This is why it has always been treated with mistrust by those in power. Especially at times marked by the (institutional or actual) dismantling of democratic conquests, as today in times of austerity and economic crisis, the right to assembly is bound to come under attack.
There is an essential contradiction in the relationship between right of assembly and EU policy. On one hand the right of assembly is quite well protected first through art. 11 of ECHR (especially through Council of Venice Guidelines) and secondly through art. 12 of the Charter of Fundamental Rights of the EU. On the other hand EU is being used as a pretext to impose new restrictions to the freedom of assembly:
First, according to ECJ jurisprudence the four fundamental freedoms laid down in the TFEU (freedom of movements of goods, capital, services and people) are considered as restrictions to the freedom of assembly.[ii]
In the Schmidberger case ECJ pointed that the fact that the competent authorities of a Member State did not ban a demonstration which resulted in the complete closure of a major transit route such as the Brenner motorway for almost 30 hours on end is capable of restricting intra-Community trade in goods and must, therefore, be regarded as constituting a measure of equivalent effect to a quantitative restriction which is, in principle, incompatible with the Community law obligations arising from Articles 30 and 34 of the Treaty, read together with Article 5 thereof. Concerning the justification of the restriction ECJ took in consideration that by that demonstration, citizens were exercising their fundamental rights by manifesting in public an opinion which they considered to be of importance to society; that the purpose of that public demonstration was not to restrict trade in goods of a particular type or from a particular source; that various administrative and supporting measures were taken by the competent authorities in order to limit as far as possible the disruption to road traffic and those authorities, including the police, the organisers of the demonstration and various motoring organisations cooperated in order to ensure that the demonstration passed off smoothly; that the economic operators concerned were duly informed of the traffic restrictions applying on the date and at the site of the proposed demonstration and were in a position timeously to take all steps necessary to obviate those restrictions ; that the isolated incident in question did not give rise to a general climate of insecurity such as to have a dissuasive effect on intra-Community trade flows as a whole and finally that all the alternative solutions which could be countenanced would have risked reactions which would have been difficult to control and would have been liable to cause much more serious disruption to intra-Community trade and public order, such as unauthorised demonstrations, confrontation between supporters and opponents of the group organising the demonstration or acts of violence on the part of the demonstrators who considered that the exercise of their fundamental rights had been infringed; ECJ concluded that this particular restriction on the free movement of goods o ruled was justified
Similarly in the Viking Line case (C-438/05 11-12-2007) ECJ ruled that that the fundamental nature of the right to take collective action is not such as to render Article 43 EC inapplicable and that it cannot be considered that it is inherent in the very exercise of trade union rights and the right to take collective action that the fundamental freedoms will be prejudiced to a certain degree. Also in this case ECJ found that the restrictions imposed (concerning the use of flags of convenience) might be justified
Eventually ECJ used the said jurisprudence to find unjustified a blockade (‘blockad’) of sites, to force a provider of services established in another Member State to enter into negotiations with a trade union on the rates of pay for posted workers and to sign a collective agreement the terms of which lay down, as regards some of those matters, more favourable conditions than those resulting from the legislative provisions, save for minimum rates of pay (Laval C-341/05 11-12-2007).
This jurisprudence is considered so well established that in a recent case[iii], the Swedish Arbetsdomstolen didn’t even asked ECJ to examine whether a Swedish trade union action to block the unloading and uploading of a Norwegian ship flying Panama flag were compatible with EU law . In his opinion, the general advocate pointed out that the free movement of services covers also a ship flying a third country flag if the company that owns and exploits it is being established in an EEA country.
Moreover, EU summits (as G8 summits) are being used as an excuse to imply severe measures restraining freedom of assembly, even beyond the provisions laid down in the law or in the Constitution of EU member states. This is not at all surprising, concerning that anti-globalization movements were initially the reason–even before 11/9- to initiate the legislative procedure concluded with the EU framework decisions on European arrest warrant and on combating terrorism[iv]
There is a well documented tendency to ban an assembly or impose certain restrictions (usually creating a red zone around the place where a summit is being held) so as to protect the life and physical integrity of foreign visitors or even the feeling of safety of foreign visitors. In certain cases member states laws provides for permanent forbidden places of demonstrations[v].
First of all “location is one of the key aspects of freedom of assembly. The privilege of the organiser to decide which location fits best for the purpose of the assembly is part of the very essence of freedom of assembly. Assemblies in public spaces should not have to give way to more routine uses of the space, as it has long been recognised that use of public space for an assembly is just as much a legitimate use as any other. Moreover, the purpose of an assembly is often closely linked to a certain location and the freedom of assembly includes the right of the assembly to take place within “sight and sound” of its target object”.[vi] “Blanket restrictions such as a ban on assemblies in specified locations are in principle problematic since they are not in line with the principle of proportionality which requires that the least intrusive means of achieving the legitimate objective being pursued by the authorities should always be given preference.”[vii] Although art. 11 ECHR hardly justifies such restrictions, any attempt to challenge them culminates in an extensive repression and police brutality.[viii]
Anti-austerity demonstrations is another usual target for the police. Amnesty International has documented many incidents involving the use of excessive force, abuse of “less-lethal” weapons (especially tear gas, which does not discriminates between demonstrators or not demonstrators, violent or not violent ones, healthy or not healthy etc.), obstructing access to medical assistance and arbitrary detention in several countries including Greece, Romania, and Spain[ix]. In many cases, officers have repeatedly hit peaceful demonstrators with batons, including on the head and neck,and caused serious injuries. In most cases criminal investigations against accused police officers are not thorough and effective (even if such an investigation is initiated at all). On the other hand many demonstrators have been charged and condemned for attending an assembly “which turned violent” or for carrying “arms” (especially flags). Usually when a demonstrator is been beaten by the police, he is always charged for resisting arrest[x].
We should point out that although many EU Regulations impose sanctions against “rogue states” and foreign officials due to “repression of demonstrations”[xi]; this is not the case regarding member states (or other “friendly” states)/
Secondly,” the reasons for suspension, ban or termination of an assembly should be narrowed down to a threat to public safety or danger of imminent violence”[xii]. A serious threat to public safety implies that the ability of citizens to enjoy their rights is at stake – in other words, the assembled engender a serious situation (not in the short run and not based on isolated incidents) whereby citizens are unable to enjoy their constitutionally embedded rights. The most typical example is massive protests that can lead to uncontrolled rioting threatening the lives and physical integrity of non-participants. Again, proper reasoning should include the intention of a significant number of those assembled (documented by acts of preparation) to engage in such rioting. Although ECHR has pointed out that the notion of a peaceful assembly does not cover a demonstration where the organizers and participants have violent intentions (G vs Germany), the usual (vague) allegation of information about potential infiltration by rioters is not sufficient grounds for prohibiting an assembly if not accompanied by an explanation of why isolated incidents cannot be repressed or if the risk of large-scale rioting is not substantiated[xiii]. Extensive rioting is not the automatic corollary of any assembly. Does the feeling of safety of foreign visitors fall within the scope of public safety (considering also that foreign visitors might be scorned by participants)? Obviously not[xiv]. Certainly, protecting the life and physical integrity of foreign visitors no doubt qualifies as public safety. But in this case the reasoning for prohibiting the assembly on such grounds – more so in any extended area - must substantiate the risks against life or physical integrity posed by the assembly (not on grounds of “infiltration”) and explain why such risks cannot be avoided by means other than prohibition. “Furthermore, dispersal should not occur unless law enforcement officials have taken all reasonable measures to facilitate and to protect the assembly from harm and unless there is an imminent threat of violence”[xv]. A different issue is the repression of criminal acts that may be committed by members of the assembly. This can be addressed without breaking the assembly.
On the other hand, any gathering will undoubtedly cause some degree of disruption to the usual course of social life in any area; it will interfere with public transport and/or normal commercial activity. Hence it will disrupt public order. Is this sufficient ground for prohibiting the gathering? To say so is to fully undermine the right to assembly. This is not what the Greek Public Prosecutor thinks. In his Opinion 4/99 takes the position “it would be insane to argue that freedom of assembly overrides road safety when the latter concerns life, property, etc.”, therefore assemblies must be arranged so as not to disturb road traffic or cause as little disturbance as is absolutely necessary[xvi]. Broadly speaking, this balancing exercise involves political assessments about the terms within which freedom of assembly can be practiced and reintroduces discretionary powers to the police, but now on the level of containment, not prohibition, of the assembly
There has been a long discussion whether new phenomena (such as the restructuring of socialization, forms of social integration or political expression) undermine the significance of the right to assembly. The purpose of assemblies is, on the one hand, to communicate claims and views to the wider public with a view to inviting others to join (by participating) and, on the other hand, to reflect the range of such claims and views on the political process. It is questionable whether other ways to achieve these goals are available at the current juncture. The media (even when – rarely – allowing unfettered expression) do not involve the public. The Internet and social media may enable participation to those with access to the information society, who get to obtain knowledge (in the chaos of the information society) about how to join in voicing their claims and opinions but it falls short of the immediacy, interaction and personal involvement of an assembly. Besides, what illustrates historically the political importance of the freedom of assembly is precisely the threat against the normality of social life. The right to assembly, ultimately a right to challenge dominant political choices, remains a yardstick against which a political system’s response to the imperatives of freedom is measured.
[i] Djavit An vs Turkey, Berladir et al. vs Russia, Galstyan vs Armenia et al.
[ii] Commission vs France C-265/95, Schmidberger C-112/00. Therefore, neoliberalism can be found in the EU DNA
[iv] See for example the relevant Watson report (A5-0273/2001)
[v] Comparison on the rights, limitations and procedures related to public gatherings and demonstrations across Europe, prepared for the Helsinki Committee
[vi] Joint Opinion on the Law on Public Assembly of Serbia by the Venice Commission and OSCE/ODIHR§32 CDL-AD (2010) 031
[vii] Joint Opinion on the Amendments to the Law on the Rights of Citizens to Assemble Peaceably, Without Weapons, to Freely Hold Rallies and Demonstrations of the Kyrgyz Republic by the Venice Commission and OSCE/ODIHR§22 CDL-AD (2008) 025
[viii] Genoa and Gothenburg are the most renowned cases, but not the only ones. Police zeal could exceed even the seriousness of the circumstances: In a recent anti-Ecofin summit demonstration in Greece, a well known syndicalist has been arrested for denying to move away from a square –far away from the summit, but nevertheless inside the red zone formed by the police. Even the Court asked the police officer who arrested him, whether he was forming a prohibited demonstration all by himself
[ix] Policing Demonstrations in the European Union, October 2012
[x] To disperse a non- prohibited demonstration in Syntagma sq., police forces has been involved in a massive violent operation, throwing tear gas even inside the metro station. Videos of demonstrators dancing surrounded by tear gas and attacked by police forces has been circulated around the globe.
[xi] Concerning Libya, Iran, Syria, Belorussia etc.
[xii] Opinion on the Draft Law on Meetings, Rallies and Manifesations in Bulgaria§58 CDL-AD (2009) 035
[xiii] ECHR in its Ziliberberg vs Moldova decision states that an individual does not cease to enjoy the right to peaceful assemply as a result of sporadic violence or other punishable acts commited by others in the course of the demonstration, if the individual in question remains peaceful in his or her intentions or beahaviour
[xiv] Greek Supreme Administrative Court thought otherwise in its 633/99 Ruling
[xv] Opinion on the Draft Law on Meetings, Rallies and Manifesations in Bulgaria§58 CDL-AD (2009)
[xvi] e.g. proceed through a single lane or on the sidewalk – as provided by the Greek Junta act on demonstrations and as recently provided by a greek law on small demonstrations